Filed 9/28/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


JAMES PAYTON,                             B284065

       Plaintiff and Appellant,           (Los Angeles County
                                          Super. Ct. No. BC525050)
       v.

CSI ELECTRICAL CONTRACTORS,
INC., et al.,

       Defendants and Respondents.


      APPEAL from an order of the Superior Court of
Los Angeles County. Ann I. Jones, Judge. Affirmed.
      Peter R. Dion-Kindem; The Blanchard Law Group and
Lonnie C. Blanchard, III for Plaintiff and Appellant.
      Atkinson, Andelson, Loya, Ruud & Romo, Ronald W.
Novotny and Jon M. Setoguchi for Defendant and Respondent
CSI Electrical Contractors, Inc.
      Pacific Employment Law, Maureen K. Bogue and Noah
Levin for Defendant and Respondent First Solar, Inc.

                _________________________________
       James Payton appeals from an order denying class
certification. Payton filed this putative class action alleging wage
and hour violations against Respondents CSI Electrical
Contractors, Inc. (CSI) and First Solar, Inc. (First Solar)
(collectively “Respondents”). The claims arose from construction
work on a solar farm project in San Luis Obispo County.
       Payton sought certification of two classes. The first, the
Rest Period Class, concerned persons affected by Respondents’
alleged practice of “tacking” the required 10-minute afternoon
rest break onto the end of the 30-minute lunch break, resulting in
a 40-minute mid-day break rather than a separate mid-afternoon
break. The second, the Travel Pay Class, concerned persons who
were not paid for time spent commuting in company-provided
buses to the construction site, allegedly in violation of union
contracts.
       The trial court denied certification of both classes. With
respect to the Rest Period Class, the trial court found that a class
action was inappropriate and unworkable in light of the
individual issues arising from evidence that particular working
groups actually received regular afternoon breaks. With respect
to both classes, the trial court found that Payton’s trial plan was
inadequate and that he was not a suitable class representative.
The trial court based this finding on Payton’s prior criminal
convictions and the fact that he is also pursuing a personal
wrongful discharge claim. The trial court denied Payton’s request
to look for a new class representative in light of the age of the
case and the other problems with the motion for class
certification.
       We affirm. Substantial evidence supports the trial court’s
conclusion that individual questions would predominate in
determining which class members actually have a claim for




                                 2
missed rest breaks. The trial court also acted within its
discretion in finding that Payton is not an adequate class
representative, and in denying leave to substitute another
representative in light of the age of the case and the futility of
doing so.
                         BACKGROUND
1.     Payton’s Complaint
       Payton was hired on May 22, 2012, by CSI as an electrical
and construction worker to work on the Topaz Solar Farm. He
claims he was “effectively terminated” less than a month later on
June 14, 2012. First Solar was the “owner, operator and
manager” of the Topaz Solar Farm, which is located in San Luis
Obispo County.
       Respondents provided buses that transported employees
from employee parking lots to the jobsite. Travel time to the site
could take up to an hour and a half. Payton claimed that
Respondents were obligated under certain union contracts to pay
travel time for employees who took these buses. Payton asserted
class claims for the alleged failure to pay travel time, including
claims for overtime compensation where warranted.
       Payton also alleged that Respondents violated applicable
regulations governing rest periods and meal breaks by tacking
the second of the required two daily rest breaks onto the end of
the mid-day meal period. Payton asserted class claims for this
alleged violation on behalf of employees who worked shifts longer
than six hours.
       In addition to these class claims, Payton asserted an
individual claim for wrongful termination in violation of public
policy. Payton claimed that he suffered an injury on the job
causing a “deep gash in his wrist.” He alleged that the injury




                                  3
“exposed a fault in the safety gear provided by Defendants” and
that Respondents provided inadequate treatment. He claimed
that his employment was terminated after he complained about
the lack of proper safety equipment and about Respondents’
failure to provide him with adequate care for his injury. He
further claimed that Respondents falsely reported the reason for
the termination as a “ ‘reduction of workforce.’ ”
2.     Payton’s Motion for Class Certification
       Payton filed a motion seeking certification of two classes.
The Rest Period Class was allegedly composed of “All persons
employed by CSI in the State of California as construction
workers at the Topaz Solar Farm during the period from
October 21, 2009 to the date . . . the class is certified who do not
opt out and who worked a shift longer than six hours.” The
Travel Pay Class allegedly consisted of “All persons employed by
CSI in the State of California as construction workers at the
Topaz Solar Farm during the period from October 21, 2009 to the
date . . . the class is certified who do not opt out and who traveled
to or from the work site using transportation provided [by] CSI or
First Solar.”
       With respect to the Rest Period Class, Payton claimed that
the tacked break policy violated paragraph 11 of Industrial
Welfare Commission wage order No. 16-2001 (Wage Order 16).
That paragraph states in relevant part that “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. Nothing in this provision shall prevent an employer from
staggering rest periods to avoid interruption in the flow of work
and to maintain continuous operations, or from scheduling rest
periods to coincide with breaks in the flow of work that occur in
the course of the workday. The authorized rest period time shall




                                  4
be based on the total hours worked daily at the rate of ten (10)
minutes net rest time for every four (4) hours worked, or major
fraction thereof.” (Cal. Code Regs., tit. 8, § 11160, subd. 11(A).)
Payton claimed that, under Labor Code section 226.7,
Respondents “must pay one additional hour of compensation for
each work day that the rest period is not provided.”
        With respect to the Travel Pay Class, Payton argued that
Respondents were obligated to pay for travel time under several
union agreements. The pertinent provision in those agreements
stated that “[t]he Employer shall pay for traveling time and
furnish transportation from shop to job, job to job, and job to
shop. Travel time shall be at the appropriate rate of pay for that
day of the week.”
        Payton supported the motion with his own declaration
stating that he received only a “tacked” afternoon break on the
job and was not paid for his travel time on the company buses.
He also submitted excerpts from the deposition of CSI’s corporate
representative, Michael While, who testified in response to a
question about “ ‘all of the meal break practices at the Topaz
site.’ ” While stated that “[t]he employees would take a — a
break at 9:30. Employees would take lunch at 12:00 o’clock. And
then they would pick up at the end of the day to go home. [¶]
Q Okay. Was a rest break provided in the afternoon similar to
the 9:30 rest break? [¶] A It was tacked onto the lunch break,
so the employees would take a 40-minute lunch. [¶] Q Okay.
The practice of the Topaz site was that there would be a 30-
minute lunch break, plus a simultaneous ten-minute rest break
extending the whole period to 40 minutes, and there would be no
separate rest break in the afternoon; correct? [¶] A Correct. On
an eight hour day.” While also testified that he communicated
this practice to new employees at their orientation.




                                 5
3.     Respondents’ Opposition
       Respondents denied that there was a policy at the Topaz
construction site to deprive workers of an afternoon break.
Respondents submitted declarations from numerous employees
testifying that they always received afternoon breaks separate
from the lunch break. The declarations included testimony by a
union business manager that part of his job was to ensure that
employees took their afternoon breaks.
       Respondents also submitted a declaration from While
explaining his deposition testimony. While explained that his
testimony about the practice of tacked afternoon breaks “referred
to scheduled, site-wide breaks.” He said that he “did not
understand counsel to be asking me about, and I did not testify
regarding, afternoon breaks taken at the crew or individual level,
rather than on a site-wide basis.” He explained that, “[w]hile
additional afternoon breaks were not scheduled on a site-wide
basis, individual workers and crews were always permitted to
take additional afternoon rest breaks, as needed, consistent with
the work being performed on any given day.” He personally
observed crews taking afternoon breaks between 2:00 p.m. and
3:00 p.m.
       With respect to Payton’s alleged Travel Pay Class,
Respondents denied that the travel pay provision on which
Payton relied was applicable. They also argued that the claim for
travel pay was preempted by federal law because it involved the
alleged interpretation and breach of a collective bargaining
agreement. In addition, they asserted that the claim was barred
by the doctrine of judicial estoppel, because in opposing remand of
the case following removal to federal court Payton represented
that he did not seek relief under collective bargaining
agreements.




                                6
4.     The Trial Court’s Ruling
        The trial court denied Payton’s motion on several grounds.
First, with respect to the Rest Period Class, the court found that
individual issues would predominate in determining which
employees were not permitted to take afternoon rest breaks. The
trial court credited Respondents’ employee declarations and
While’s explanation of his deposition testimony and concluded
that, based on that evidence, “trial would turn into an individual-
by-individual exercise.” The court also concluded that the
question of the nature of the afternoon breaks the employees
received—whether they were “recovery” breaks or regularly
scheduled “rest breaks”—was “highly individualized.” Moreover,
in light of the provision in Wage Order 16 that rest breaks may be
staggered “to avoid interruption in the flow of work,” individual
inquiry would be necessary to determine if tacked rest breaks
were consistent with work performed by particular crews.
       For the same reasons, the trial court also found that the
Rest Period Class was not ascertainable, because individual
issues would govern which class members actually had a claim for
missed rest breaks.
       With respect to the Travel Pay Class, the trial court denied
Respondents’ arguments that individual issues predominated.
The court concluded that issues concerning Respondents’
obligations, if any, under the union agreements, as well as those
concerning Respondents’ preemption and judicial estoppel
defenses, “are all common issues capable of class-wide
determination.”
       However, the trial court found that Payton was not a
suitable class representative for either of the alleged classes.
Payton previously served an eight-year prison sentence for “lewd
and lascivious acts with a child under 14” and a three-month




                                7
sentence for felony marijuana sale. He also had a prior
misdemeanor conviction from a parole violation for failing to
register as a sex offender. Although the felony convictions were
old (between 19 and 22 years old according to Payton), the trial
court concluded that they raised a disqualifying credibility issue.
       The trial court also found that Payton’s claims were not
typical of the class, as his individual wrongful discharge claim
was likely to detract attention from the class wage and hour
claims. The court declined Payton’s request to look for a new
class representative, concluding that permission to amend the
complaint “in this almost 4-year-old case” would be futile given
the other problems with the class certification motion.
       Finally, the trial court found that Payton had not submitted
an adequate trial plan for handling individual issues.
                         DISCUSSION
1.     Legal Standards
       A class action is permitted under Code of Civil Procedure
section 382 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.” Consistent
with this provision, our Supreme Court has instructed that a
party seeking certification of a class 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.” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1021 (Brinker).) The “community of interest”
requirement in turn includes three factors: (1) predominant
common questions of law or fact; (2) class representatives with
claims or defenses typical of the class; and (3) class




                                 8
representatives who can adequately represent the class. (Ibid.)
The “ultimate question” in assessing predominance 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.’ ” (Duran v. U.S. Bank
National Assn. (2014) 59 Cal.4th 1, 28 (Duran).)
       In addition to these requirements, a court considering a
class certification motion must also “conclude that litigation of
individual issues, including those arising from affirmative
defenses, can be managed fairly and efficiently.” (Duran, supra,
59 Cal.4th at pp. 28–29.) In the context of a wage and hour case
“where a party seeks class certification based on allegations that
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.” (Id. at p. 29.)
       An appellate court’s review of a class certification order is
“narrowly circumscribed.” (Brinker, supra, 53 Cal.4th at p. 1022.)
“ ‘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.’ ”
(Ibid., quoting Fireside Bank v. Superior Court (2007) 40 Cal.4th
1069, 1089 (Fireside Bank).) A trial court’s ruling supported by
substantial evidence will not generally be disturbed on appeal
unless it was “ ‘based upon improper criteria or incorrect
assumptions.’ ” (Brinker, at p. 1050.)




                                 9
2.     Individual Questions Predominate in
       Identifying the Persons Affected by the Alleged
       Rest Break Violation
       Payton argues that Respondents’ liability for the tacked
rest break policy is a common issue that justifies certification of
the Rest Period Class. The trial court rejected this argument,
finding that individual issues would predominate because
employees in particular working groups were permitted to take
work breaks during the afternoon.
       Substantial evidence supports the trial court’s finding.
Respondents submitted declarations attesting to regular
afternoon breaks from workers in a number of different crews,
including foremen in supervisory positions.
       Importantly, Respondents also submitted evidence
supporting the conclusion that mid-afternoon breaks were
systematically enforced. As the trial court noted, “Mark Simonin,
the business manager for IBEW Local 639, states, inter alia, that
‘[o]ver the course of the project, [he] personally observed and
ensured that CSI’s workers (and other IBEW workers)
consistently took non-tacked afternoon rest breaks, separate and
apart from their meal periods.” Simonin testified that “[p]art of
my job (and the job of the union stewards on the site) was to
ensure that workers took their afternoon breaks.” Another
employee testified that an afternoon rest break was “CSI practice
and required by the IBEW.”
       The trial court was entitled to credit such evidence. Based
on that evidence, the trial court reasonably concluded that
individual issues would predominate. Individual workers who
were given regular, scheduled mid-afternoon breaks have no
claim against Respondents, because Respondents did not deny
them their rights under Wage Order 16. As the trial court




                                10
observed, separating those individuals from persons who received
no mid-afternoon break would “turn into an individual-by-
individual exercise.”
       Thus, Payton is incorrect in claiming that the existence of a
site-wide tacked break policy itself was sufficient to prove liability
on a common basis. Even assuming that a single tacked
afternoon rest break was unlawful, the relevant question for
liability is whether there was a uniform policy for workers to
receive only such a break. Workers who received a mid-afternoon
break either instead of, or in addition to, the tacked rest break
did not suffer a violation under Payton’s theory. Certainly
Payton could not prove a violation by showing that Respondents
permitted more rest periods than Wage Order 16 requires.
       Permitting proof of class-wide liability based only on the
existence of the site-wide tacked break policy would violate the
fundamental principle that “the class action procedural device
may not be used to abridge a party’s substantive rights.” (Duran,
supra, 59 Cal.4th at p. 34.) As our Supreme Court explained in
City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462,
“[c]lass actions are provided only as a means to enforce
substantive law. Altering the substantive law to accommodate
procedure would be to confuse the means with the ends—to
sacrifice the goal for the going.” The class action device may not
be used here to provide relief to class members who actually
suffered no violation because they were given the regular rest
breaks that the law requires.
       Payton argues that the trial court improperly ignored his
theory of liability, which he describes as “a common contention[]
that CSI violated California labor laws by failing to provide
employees with the required afternoon rest periods that were
required to be in the middle of the afternoon by tacking the




                                 11
afternoon rest period onto the end of the noon meal period.” (See
Brinker, supra, 53 Cal.4th at p. 1033 [“[t]he theory of liability—
that Brinker 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”].) But a class plaintiff’s theory of common proof must
be more than wishful thinking; it must have a foundation in the
evidence. As the court explained in Cruz v. Sun World Internat.,
LLC (2015) 243 Cal.App.4th 367, plaintiffs “may not simply
allege” a uniform policy or practice, but 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.” (Id. at p. 384.)
       In Brinker, the court instructed that a court must examine
the plaintiff’s complaint “and supporting declarations” in
determining whether the “ ‘theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to
prove amenable to class treatment.’ ” (Id. at p. 1021, italics
added.) The court noted that the existence of a “common, uniform
rest break policy” was conceded in that case. (Id. at p. 1033.) In
contrast to this rest break class, the court reversed the trial
court’s certification of a subclass of employees who were allegedly
required to work during meal periods because there was no
evidence of any actual “systematic company policy to pressure or
require employees to work off-the-clock.” (Id. at p. 1051.)
       Here, the trial court made findings contradicting Payton’s
theory that CSI implemented a uniform policy denying a mid-
afternoon rest break. Because these findings were supported by
substantial evidence, we will not reverse them.




                                12
       Payton also argues that the evidence merely shows that
some class members were able to take “ad hoc” afternoon breaks.
Payton argues that this evidence therefore shows only a variation
in individual damages. Payton cites the general rule that, “ ‘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.)
       This argument ignores the substantial employee testimony
that afternoon breaks were not simply “ad hoc,” but were
regularly implemented as a matter of practice. As mentioned,
that evidence included testimony from the union business
manager—which the trial court credited—supporting the
conclusion that the mid-afternoon rest break was consistently
enforced.
       Thus, the facts here are different than in cases that Payton
cites where a common unlawful policy existed. In those cases,
individual issues arose only because it was “necessary to
determine whether individual employees were able to take breaks
despite the defendant’s allegedly unlawful policy (or unlawful lack
of a policy).” (Benton v. Telecom Network Specialists, Inc. (2013)
220 Cal.App.4th 701, 726, italics added; see also Faulkinbury v.
Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 233 [evidence
established that the employer had a “uniform policy of requiring
all security guard employees to take paid, on-duty meal breaks”];
Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th
388, 413 [evidence of a common de facto policy to deny breaks].)
       In contrast, in this case the evidence supports the
conclusion that individual questions would predominate in the
proof of liability, not just damages. Even under Payton’s theory,
the site-wide tacked rest break policy was only unlawful if it was




                                13
the only break that employees were provided. Respondents could
not be liable to employees who were given the opportunity for
regularly scheduled mid-afternoon breaks in compliance with the
law.
      The existence of any common policy is not sufficient to show
that common issues predominate. The policy in question must be
a means to establish liability on a class-wide basis. (See Kizer v.
Tristar Risk Management (2017) 13 Cal.App.5th 830, 843 [even if
defendant had an unlawful policy of misclassifying workers as
exempt, no common theory of liability for withheld overtime pay
existed in the absence of common proof that class members were
actually required to work overtime].)
      Thus, we affirm the trial court’s ruling that individual
issues predominate with respect to the Rest Break Class, and
that the class therefore could not be certified. We therefore need
not consider the trial court’s ruling that the Rest Break Class was
overbroad and therefore not ascertainable.1




      1 In any event, the trial court’s analysis on the issue of
ascertainability was essentially the same as its analysis of
predominance. The trial court found that the class was overbroad
because Payton “has not shown how he would identify employees
who suffered rest period violations.” The court cited authority
holding that, no matter how a class is actually defined, if it is
overbroad because it includes those who do not have claims, and
those persons can only be identified through individual inquiry,
the class is not ascertainable. (See, e.g., Miller v. Bank of
America, N.A. (2013) 213 Cal.App.4th 1, 7.)




                                14
3.     The Trial Court Acted Within Its Discretion in
       Rejecting Payton’s Proposed Trial Plan
       In Duran, supra, our Supreme Court explained that a trial
court deciding whether to certify a class “must consider not just
whether common questions exist, but also whether it will be
feasible to try the case as a class action.” (59 Cal.4th at p. 27.)
The court cautioned that, “[i]n considering whether a class action
is a superior device for resolving a controversy, the manageability
of individual issues is just as important as the existence of
common questions uniting the proposed class.” (Id. at p. 29.)
Consistent with the principle that the class action procedure may
not be used to abrogate a defendant’s substantive rights, “a class
action trial management plan may not foreclose the litigation of
relevant affirmative defenses, even when these defenses turn on
individual questions.” (Id. at p. 34.)
       The trial court cited Duran in concluding that Payton’s
proposed trial plan was inadequate. That conclusion was within
its discretion.
       Payton’s proposed trial plan was simply a general outline of
a two-phased trial. The first phase would concern “[p]roof of the
common policy or practices questions.” Payton proposed that
these issues would be determined by “the testimony of the
Plaintiff” along with testimony of Respondent’s “PMK’s” (i.e.,
persons most knowledgeable) and various defense documents.
Payton stated that he did not intend to call any experts unless
the final trial plan or “the data produced by Defendants” called
for them.
       The proposed second phase of the trial would concern
damages. Payton proposed a special master who would “make
findings of fact for the members of the classes who participate in
Phase Two.” The findings would include the “number of second




                                15
rest periods to which each class member was entitled and the rest
period premiums payable to each class member” and the “number
of travel time hours each class member incurred when using the
employer-provided transportation system and the amount of
unpaid wages due each class member for such travel time.”
       Payton’s proposed trial plan contained no discussion of any
particular procedural device other than the idea of a two-phased
trial and the use of a special master. As the trial court explained,
the proposed plan did not contain any “ ‘explanation of the
specific procedural tools to ensure his plan is valid and
sufficiently rigorous.’ ” Nor did it contain any “ ‘basis for the
factfinder to move from quantities of data to conclusions about
liability to the class.’ ” Most critically, the proposed plan “fail[ed]
to show how the individualized issues arising from Defendants’
defenses can be managed.”
       With respect to the Rest Period Class, Payton’s proposed
plan provided no procedure to decide the individual issues
concerning employees who in fact took regular, scheduled
afternoon breaks. Payton argues that no such procedure was
necessary because, once the unlawfulness of the tacking practice
was established, each class member’s damages could be
calculated simply by multiplying each person’s hourly rate by the
number of shifts he or she worked. As discussed above, such an
approach is impermissible because it would permit recovery by
class members who do not actually have claims for missed rest
breaks.
       The proposed trial plan also failed to explain how the court
could manage any individual issues concerning the Travel Pay
Class. Although the trial court found that individual issues do
not predominate with respect to that class, Payton did not




                                  16
propose any specific procedure to adjudicate any individual
defenses that nevertheless might arise.
      Payton argues that, if he were successful in establishing the
common issue of the right to travel pay for those who rode the
company buses, company ridership logs would provide sufficient
information about who was entitled to such pay and in what
amounts. However, the logs that he cites are sign-in sheets for
each bus trip containing employees’ signatures. Many of those
signatures are illegible. Some procedure would be necessary to
decipher the signatures, count the bus rides that each employee
took and their length, and compute the amount due based upon
the individual employees’ hourly pay, the length of each ride, and
the number of hours the employee worked that day (for
computation of any overtime). This procedure would also need to
include a mechanism to resolve any factual disputes concerning
the identity of particular persons who rode the company-provided
buses if disagreements arose about interpretation of the
signatures.
      Payton did not identify any experts or even state any firm
intention to employ experts. Indeed, he did not propose any
procedure for determining individual class members’ entitlement
to travel pay as part of the judicial proceedings. He relied solely
on the proposal for a special master. However, as the trial court
correctly noted, “derogation of the Court’s authority cannot be
assumed.” Appointment of a special master under section 638
requires agreement by the parties, as the “ ‘primary effect of such
a reference is to require trial by a referee and not by a court or
jury. [Citation].’ ” (O’Donoghue v. Superior Court (2013) 219
Cal.App.4th 245, 255, quoting Treo @ Kettner Homeowners Assn.
v. Superior Court (2008) 166 Cal.App.4th 1055, 1061.) Thus,
Payton did not propose any means to resolve individual factual




                                17
disputes designed to protect Respondents’ right to challenge
Payton’s proof.
4.     The Trial Court Acted Within Its Discretion in
       Finding That Payton Is Not an Acceptable Class
       Representative
       The trial court found that Payton’s claims were not typical
of the class and that he was not an adequate class representative.
The court based its findings primarily on: (1) Payton’s individual
wrongful discharge claim; (2) his prior criminal convictions; and
(3) his failure to disclose one of those convictions on his
apprenticeship application.2 These findings were within the
court’s discretion.
       Our Supreme Court has explained that whether a class
representative is subject to unique defenses “is one factor to be
considered in deciding the propriety of certification.” (Fireside
Bank, supra, 40 Cal.4th at p. 1090.) The danger that such
defenses pose is that the representative might focus on his or her
unique issues to the detriment of the issues common to the class,
and that a major focus of the litigation will be on the unique
issues. (Ibid.)
       We agree with the trial court that the same concerns can
apply to a class representative’s unique claims. The relevant
question is whether issues unique to the class representative will
become a major focus at trial distracting from prosecution of the
class claims.

      2 The trial court also found atypical Payton’s allegation that
he was jointly employed by CSI and First Solar. Because of our
ruling affirming the trial court’s findings of lack of typicality and
inadequacy on other grounds, we need not reach this issue.




                                 18
      The trial court reasonably found that Payton’s wrongful
discharge claim posed that danger here. The court reasoned that
the credibility battle over the real reason for Payton’s termination
would distract from the rest break and travel pay issues common
to the class. The potential distraction was heightened by the
credibility issues associated with Payton’s failure to disclose his
conviction for sale of marijuana on his union apprenticeship
application.3
      That failure to disclose, along with the criminal convictions
themselves, also support the trial court’s conclusion that Payton
was not an adequate class representative. Credibility problems
can be an appropriate ground to reject the adequacy of a class
representative. (Jaimez v. Daiohs USA, Inc. (2010) 181
Cal.App.4th 1286, 1308 (Jaimez).) In Jaimez, the court concluded
that the named plaintiff was not a suitable class representative
because he failed to disclose prior criminal convictions on his
employment application. (Id. at pp. 1293–1294, 1307–1308.) The
evidence shows a similar failure to disclose here. Payton
proffered an explanation for that failure, but the explanation
could also have become the focus of a credibility battle.




      3 On his 2011 apprenticeship application, Payton disclosed
prior convictions only for “lewd sex act” and “failure to register” in
response to a question about prior felony convictions. In a
supplemental declaration below, Payton stated that he did not list
the marijuana conviction because he understood that the felony
marijuana conviction “was supposed [to] be reduced to a
misdemeanor after I served my sentence and completed my
probation, and it did not occur to me that I needed to report it.”




                                 19
       The convictions themselves could also seriously detract
from Payton’s credibility. Contrary to Payton’s argument, his
felony convictions, even though old, would be admissible for
impeachment purposes at the discretion of the trial court. (Evid.
Code, § 788.) His eight-year sentence for lewd and lascivious acts
with a child under 14 is particularly serious, and, if permitted by
the trial court, would likely have been a prominent feature in his
cross-examination.
       We therefore affirm the trial court’s finding that Payton
was not a suitable class representative.
5.     The Trial Court Acted Within Its Discretion in
       Denying Leave to Search for Another Class
       Representative
       After concluding that Payton was not an adequate class
representative, the trial court considered his request to substitute
a new representative. The trial court concluded that, “given the
other problems with the motion for class certification, allowing
Plaintiff to locate a new class representative in this almost
4-year-old case would be futile.” We conclude that, under the
circumstances of this case, the trial court acted within its
discretion in denying Payton’s request to amend the complaint to
add a new class representative.
       As the trial court noted, the court in Jones v. Farmers Ins.
Exchange (2013) 221 Cal.App.4th 986 (Jones) held that “[t]he lack
of an adequate class representative . . . does not justify the denial
of the class certification motion. Instead, the trial court must
allow Plaintiff[] an opportunity to amend [his] complaint to name
a suitable class representative. [Citation & fn. omitted.] The
court should then grant the class certification motion if it
approves a class representative.” (Id. at p. 999.) However, along
with the trial court, we do not understand this statement to be a




                                 20
description of an absolute rule that a trial court must grant leave
to amend to add a new class representative in every case in which
a court concludes that the named plaintiff is inadequate.
       In Jones, the court cited our Supreme Court’s opinion in
La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864
(La Sala). That case concerned a situation in which the
defendant in a putative class action attempted to disqualify the
named plaintiffs by offering them individual relief that would
make their claims atypical. The court rejected this tactic,
concluding that the relief the named plaintiffs received did not
render them “unfit per se to continue to represent the class.” (Id.
at p. 871.) The court left to the trial court’s discretion on remand
whether the named plaintiffs could continue to “fairly and
adequately” protect the class. (Ibid.) The court also directed
that, if the trial court concluded that the named plaintiffs were no
longer suitable, “it should at least afford plaintiffs the
opportunity to amend their complaint, to redefine the class, or to
add new individual plaintiffs, or both, in order to establish a
suitable representative.” (Id. at p. 872.)
       The court reached a similar conclusion in Kagan v.
Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582, 593. The court
held that a defendant was not permitted to “pick off” a class
representative in an action under the Consumer Legal Remedies
Act by providing individual relief to the named plaintiff. As in
La Sala, the court left to the trial court to determine whether the
plaintiff could continue to represent the class. (Kagan, 35 Cal.3d
at p. 596.) And, as in La Sala, the court directed that, if the trial
court found that the plaintiff was not a suitable class
representative, it should provide an opportunity to amend to
“ ‘establish a suitable representative.’ ” (Kagan, 35 Cal.3d at
p. 596, quoting La Sala, supra, 5 Cal.3d at p. 872.)




                                 21
       Providing an opportunity to amend makes sense when a
named plaintiff is disqualified as a result of a defense strategy to
defeat a class action by offering individual relief. Without such
an opportunity, defendants could manipulate the class action
procedure to avoid class claims. (See Larner v. Los Angeles
Doctors Hospital Associates, LP (2008) 168 Cal.App.4th 1291,
1299 [the rule permitting amendment to substitute a new class
representative “prevents a prospective defendant from avoiding a
class action by ‘picking off’ prospective class action plaintiffs one
by one, settling each individual claim in an attempt to disqualify
the named plaintiff as a class representative”].) That concern
does not apply here. The trial court disqualified Payton because
of his own background and conduct, not because of any defense
manipulation.
       An absolute rule requiring substitution of a new class
representative after a ruling that the named plaintiff is
inadequate would be inconsistent with the general principle that
a trial court has discretion in deciding whether to permit an
amended complaint. (See Record v. Reason (1999) 73 Cal.App.4th
472, 486 (Record) [trial court “ ‘has wide discretion in allowing the
amendment of any pleading [citations], [and] as a matter of policy
the ruling of the trial court in such matters will be upheld unless
a manifest or gross abuse of discretion is shown’ ”], quoting
Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135–136.)
       The general principles governing the amendment of a
complaint apply to the decision whether to permit an amendment
naming a new class representative. In California Gasoline
Retailers v. Regal Petroleum Corp. (1958) 50 Cal.2d 844 (Gasoline
Retailers), the court reviewed the trial court’s decision to
substitute a new class representative under the procedure for
amending a complaint under section 473. (Id. at p. 851.) The




                                 22
court noted that, under that procedure, a trial court may permit
an amendment “in its discretion” even after trial. (Ibid., citing
Feigen v. Kutchor (1951) 105 Cal.App.2d 744, 747–748.) The
court concluded that the amendment adding the new
representative in that case did not prejudice the defendants, and
that the trial court “did not abuse its discretion in permitting the
amendment” to conform to proof. (Gasoline Retailers, at p. 851;4
see also Jaimez, supra, 181 Cal.App.4th at p. 1308 [applying rules
governing the amendment of a complaint in ruling that the trial
court abused its discretion in denying leave to substitute a new
class representative]; Safeco Ins. Co. of America v. Superior Court
(2009) 173 Cal.App.4th 814, 835 [leaving “to the sound discretion
of the trial court” on remand whether to grant a motion to amend
the complaint to substitute a new class representative].)
       Leave to amend a complaint should be given liberally.
(Gasoline Retailers, supra, 50 Cal.2d at p. 851; Nestle v. City of
Santa Monica (1972) 6 Cal.3d 920, 938–939.) However, there are
circumstances in which leave to amend is properly denied. In
particular, denying a request to amend a complaint may be
appropriate when an unreasonable delay in seeking amendment
prejudices the defendant. (Ibid.; Record, supra, 73 Cal.App.4th at
pp. 486–487 [leave to amend properly denied where plaintiff was
aware of the circumstances supporting the amendment when he
filed his original complaint three years previously].)



      4In La Sala, supra, the court cited Gasoline Retailers in
holding that the plaintiffs should be permitted an opportunity to
amend if the trial court found the named plaintiff unsuitable.
(La Sala, supra, 5 Cal.3d at p. 872.)




                                23
        Prejudice can include the time and expense associated with
opposing a legal theory that a plaintiff belatedly seeks to change.
For example, in Melican v. Regents of University of California
(2007) 151 Cal.App.4th 168 (Melican), the court concluded that
the trial court acted within its discretion in denying the plaintiff’s
oral request to amend the complaint during a summary judgment
hearing. The plaintiff had known about the underlying facts for
five years, and permitting the amendment at that point would
have required the defendants to shoot at a “moving target” in
their summary judgment motion. (Id. at p. 176.)
        a.    Payton’s Delay in Seeking to Amend
        One of the grounds that the trial court identified here for
denying Payton’s request to find a new class representative was
the length of time this action has been pending. The trial court
could properly rely on the age of the case in denying Payton’s
request to find a new class representative.
        This action was originally filed in October 2013, nearly
three years before Payton filed his motion for class certification.
The record does not reflect when plaintiff’s counsel learned of
Payton’s prior convictions. However, the convictions were part of
the discovery record in this case at least by August 25, 2015,
when Payton testified about them during his deposition. That
was a year before Payton filed his motion for class certification on
August 1, 2016. It was predictable that Payton’s criminal
convictions—along with his separate wrongful discharge claim—
would be a point of contention in seeking class certification, and
might disqualify Payton as a class representative. Yet Payton
proceeded with his motion for class certification without any
attempt to add or substitute a new class representative before
filing.




                                 24
       Permitting Payton to amend now, after Respondents
successfully opposed the original class certification motion, would
require Respondents to shoot at a “moving target” in opposing
certification. (See Melican, supra, 151 Cal.App.4th at p. 176.)
The reasoning of the court in In re Flash Memory Antitrust Litig.
(N.D. Cal. June 9, 2010) No. C 07-0086 SBA, 2010 U.S. Dist.
LEXIS 59491, is helpful here.5 In that case, the court denied a
motion to amend the complaint to substitute new plaintiffs in a
multi-state antitrust class action. (2010 U.S. Dist. LEXIS 59491
at **69–70.) The plaintiffs filed the motion contemporaneously
with their motion for class certification. (Id. at *75.) The court
concluded that the substitution would “unduly prejudice
Defendants, who have been preparing their defense based on the
identities of the class representatives identified in the pleadings.
Allowing Plaintiffs to ‘swap out’ certain class representatives at
this juncture would require Defendants to conduct new and/or
additional discovery that would not otherwise have been required
had Plaintiffs joined the appropriate representatives in the first
instance.” (Id. at *74.) The court observed that the plaintiffs
should have determined the qualifications of the class
representatives “at the inception of the litigation, not years after
the action had commenced.” (Id. at *75; see also Giron v.


      5 In the absence of California authority concerning class
action issues, “ ‘California courts may look to the Federal Rules of
Civil Procedure . . . and to the federal cases interpreting them
[citation].’ ” (Ticconi v. Blue Shield of California Life & Health
Ins. Co. (2008) 160 Cal.App.4th 528, 546, quoting Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2007) ¶ 14:11.20, p. 14-9.)




                                 25
Hong Kong & Shanghai Bank Co. (C.D. Cal. Nov. 15, 2017) No.
2:15-CV-08869-ODW(JC), 2017 U.S. Dist. LEXIS 189087, at *41
[denying plaintiffs’ motion to substitute class representatives
where, “despite adequate opportunity to identify and propose
different class representatives, they chose to file their Motion to
Certify Class, and only raised the possibility of different class
representatives when substantively challenged regarding their
typicality and adequacy”].)
       Here, Payton should have sought to add or substitute a
more suitable class representative before filing his motion for
class certification. The trial court did not abuse its discretion in
denying Payton’s request to amend the complaint made only after
Respondents challenged his qualifications as a class
representative in opposing the motion to certify the class.
       b.     Futility of an Amendment
       In denying Payton’s request to amend the complaint to
substitute a new class representative, the trial court also cited
“the other problems with the motion for class certification” that
would make an amendment futile. The futility of a proposed
amendment can provide a ground to deny a request to amend.
(Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1437.)
       The predominance of individual issues made any
amendment futile with respect to the Rest Period Class. The
individual issues in proving injury were unrelated to the identity
of the class representative, and could not have been cured by
filing an amended complaint.
       The trial court did not find the same predominance issues
with respect to the Travel Pay Class. However, the trial court did
reject Payton’s proposed trial plan, which concerned both alleged
classes. As discussed above, the trial court acted within its




                                26
discretion in doing so. An amended complaint also could not have
cured the defective trial plan.
       Nor was the trial court required to give Payton another
opportunity to provide an acceptable trial plan. The problems
with Payton’s proposed plan for the Travel Pay Class did not
suggest that an acceptable plan was impossible for that class;
company records apparently do exist that might be used to
identify who rode the company buses on what days. However, a
plaintiff in a California class action ordinarily gets one shot at a
class certification motion. (See Stephen v. Enterprise Rent-A-Car
(1991) 235 Cal.App.3d 806, 811 [“no policy in the law allowed [the
plaintiff] to ‘renew’ a class certification motion which had been
denied on the merits by a final, appealable order”].) It would
certainly be anomalous to require the trial court to provide a
second chance to file an acceptable certification motion simply
because a plaintiff created an additional problem by naming an
unacceptable class representative.
                               DISPOSITION
       The trial court’s order denying class certification is
affirmed. Respondents are entitled to their costs on appeal.
       CERTIFIED FOR PUBLICATION.




                                           LUI, P. J.
We concur:




      ASHMANN-GERST, J.                    HOFFSTADT, J.




                                27
