Filed 8/1/18; Certified for publication 8/28/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION SEVEN


ROBERTO MARTINEZ et al.,                             B278513

        Plaintiffs and Appellants,                   (Los Angeles County
                                                     Super. Ct. No. BC377269)
        v.

LANDRY’S RESTAURANTS,
INC.,

        Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Allan J. Goodman, Judge. Affirmed.
      Righetti Glugoski, Matthew Righetti and John Glugoski for
Plaintiffs and Appellants. Restaurant
      Law Offices of Mary E. Lynch, Mary E. Lynch; Sheppard,
Mullin, Richter & Hampton and Charles F. Barker for Defendant
and Respondent Landry’s Restaurants, Inc.
                       ___________________
      Roberto Martinez, Lisa Saldana, Craig Eriksen and Chanel
Rankin-Stephens (collectively Martinez parties) sued Crab
Addison, Inc., Ignite Restaurant Group, Inc. (formerly known as
Joe’s Crab Shack Holdings, Inc.) and Landry’s Restaurants, Inc.
on behalf of a putative class of salaried employees of Joe’s Crab
Shack restaurants in California who were allegedly misclassified
as exempt managerial/executive employees and unlawfully
denied overtime pay. On August 3, 2016 the trial court granted a
motion to dismiss pursuant to Code of Civil Procedure
                               1
sections 583.310 and 583.360, finding the Martinez parties had
failed to bring their lawsuit to trial within five years, as
extended. On appeal the Martinez parties argue the court
abused its discretion in refusing to exclude from its calculation of
the mandatory five-year period 319 days during which a writ
petition challenging that court’s order to produce the names and
contact information for putative class members was pending (see
Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958
(Joe’s Crab Shack I)), 169 days between the notice of remand
following removal of the case to United States District Court and
the Ninth Circuit’s order affirming the District Court’s remand,
and a nine-month period between the court’s order granting the
Martinez parties’ motion to compel production of electronically
stored information and full compliance with that order. We
affirm.




1
      Statutory references are to this code.



                                   2
       FACTUAL AND PROCEDURAL BACKGROUND
       1. The Parties
          a. The Martinez parties
       Martinez, Saldana, Eriksen and Rankin-Stephens are
current or former employees of Joe’s Crab Shack restaurants in
California. Martinez filed the original complaint in this lawsuit
on September 7, 2007, seeking to represent a class of salaried
Joe’s Crab Shack employees on claims they had been
misclassified as exempt managerial/executive employees and
were entitled to overtime pay. The complaint also alleged meal
period, rest period and wage statement claims.
       In March 2010 the trial court denied Martinez’s motion for
class certification on the ground he was not an adequate class
representative. Martinez did not appeal that order. The trial
court permitted Saldana, Eriksen and Rankin-Stephens to join
the lawsuit as named plaintiffs and putative class
representatives.
          b. The restaurant entities
       The only defendant named in Martinez’s complaint was
“Joe’s Crab Shack, Inc.,” a nonexistent entity, plus 50 Doe
defendants. Eventually, the named defendants were Landry’s
Restaurants, Inc., which owned the Joe’s Crab Shack restaurant
chain through November 16, 2006; Crab Addison, Inc., which
owned the chain during the proceedings in the trial court; and
Ignite Restaurant Group, Inc. (formerly known as Joe’s Crab
Shack Holdings, Inc.), Crab Addison, Inc.’s parent.
       On June 15, 2017, while this appeal was pending, we were
notified by counsel that on June 6, 2017 Ignite Restaurant Group,
Inc. and Crab Addison, Inc. had filed voluntary petitions for relief
under Chapter 11 of the United States Bankruptcy Code in the




                                 3
United States Bankruptcy Court for the Southern District of
Texas. On June 29, 2017 we stayed the case as to those two
parties, but directed it proceed as to Landry’s Restaurants. In a
status report filed June 28, 2018 counsel for the Martinez parties
advised the court that they had filed proofs of claim in the
bankruptcy proceedings against Ignite Restaurant Group and
Crab Addison; Ignite Restaurant Group and Crab Addison
objected to the claims; and the matter is now set for trial in the
bankruptcy court on December 3, 4 and 5, 2018. Accordingly, this
appeal is proceeding only between the Martinez parties and
                      2
Landry’s Restaurants.
     2. Events Through Our February 26, 2015 Remand in
        Martinez v. Joe’s Crab Shack Holdings (2014)
        231 Cal.App.4th 362
         a. Crab Addison’s writ petition
      In December 2007, several days after filing a first amended
complaint, Martinez served special interrogatories seeking,
among other items, the identity and contact information for
putative class members, that is, for current or former salaried
employees of Joe’s Crab Shack restaurants in California. Crab
Addison objected on the ground the interrogatories sought
confidential and private information. On April 30, 2008 the trial
court granted Martinez’s motion to compel Crab Addison to
provide the requested names and contact information. On
May 19, 2008 the court clarified its April 30 order and granted
Martinez’s additional motion to compel Crab Addison to identify
and provide contact information for potential employee witnesses.

2
     The Chapter 11 liquidation plan filed in 2017 by Ignite
Restaurant Group reflects an agreement to sell the Joe’s Crab
Shack chain and another restaurant chain to Landry’s, Inc.



                                4
       On May 29, 2008 Crab Addison filed a petition for writ of
mandate in this court, challenging the trial court’s discovery
orders. On June 3, 2008 we ordered Martinez to file a response to
the writ petition and stayed enforcement of the trial court’s
April 30, 2008 and May 19, 2008 discovery orders pending further
order of this court. The writ proceeding was actively litigated
through December 30, 2008 when we filed our decision in Joe’s
Crab Shack I, supra, 169 Cal.App.4th 958, denying the writ
petition and upholding the trial court’s orders compelling
disclosure of the relevant employees’ names and contact
information. A petition for rehearing was denied on January 14,
2009; the Supreme Court denied review on March 18, 2009; and
the remittitur, certifying that our decision had become final,
issued on April 13, 2009. A total of 319 days elapsed between
Crab Addison’s filing of its petition and the issuance of our
           3
remittitur.
      Although we stayed enforcement of the order compelling
discovery of putative class members’ names and contact
information while Crab Addison’s writ petition was pending, the
parties continued to litigate other aspects of the case in the trial
court, including engaging in written and deposition discovery.
      b. Removal to federal court
      On March 25, 2009, 19 days before the issuance of our
remittitur in the writ proceeding, Crab Addison and Joe’s Crab
Shack Holdings filed notice that they had removed Martinez’s


3
     The Martinez parties claim the relevant period is 331 days,
measuring it from the date the trial court granted the motion to
compel further discovery responses rather than the date on which
Crab Addison filed its petition for writ of mandate in this court.



                                  5
lawsuit to federal court under the Class Action Fairness Act of
                                      4
2005 (CAFA) (28 U.S.C. § 1332(d)). On June 4, 2009 the district
court granted Martinez’s motion to remand, finding that Crab
Addison and Joe’s Crab Shack Holdings had failed to carry their
burden of establishing the requisite $5 million amount in
             5
controversy. The court’s clerk sent notice of remand, together
with a certified copy of the order of remand, to the state court on
June 8, 2009, 75 days after removal.
      On September 30, 2009 the Ninth Circuit issued an order
permitting Crab Addison and Joe’s Crab Shack Holdings to
appeal the district court’s order of remand. On November 24,
2009 the Ninth Circuit affirmed the order of remand. During the
169 days between the clerk’s notice of the order of remand and
                                                              6
the Ninth Circuit’s affirmance of the district court’s order, the



4
       CAFA expanded the federal courts’ discretion to exercise
diversity jurisdiction over class actions, permitting federal
jurisdiction under specified circumstances when the aggregate
amount of the plaintiffs’ claims exceeds $5 million (28 U.S.C.
§ 1332(d)(2), (d)(6)) and at least one plaintiff is diverse from at
least one defendant (28 U.S.C. § 1332(d)(2)(A)).
5
     The district court rejected the argument that the removal
by Crab Addison and Joe’s Crab Shack Holdings under CAFA
was untimely.
6
       A total of 114 days elapsed between the date the district
court clerk sent the notice of remand, which returned jurisdiction
to the superior court, and the date the Ninth Circuit accepted
Crab Addison and Joe’s Crab Shack Holdings’ appeal of the
district court’s remand order. The appeal was pending for an
additional 55 days.



                                  6
parties continued to engage in discovery activities in the trial
court.
       c. Appeal of the denial of class certification
       In June 2011 the Martinez parties moved for certification of
a class consisting of “[a]ll persons employed by Defendants in
California as a salaried restaurant employee in a Joe’s Crab
Shack restaurant at any time since September 7, 2003.” In
support of their motion the Martinez parties submitted training
and operation manuals, as well as deposition testimony and
declarations from former and current employees of Joe’s Crab
Shack restaurants, to establish that hiring, training and
operations practices are uniform throughout the chain. (See
Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th
362, 368 (Joe’s Crab Shack II).) The employee declarations were
largely from individuals employed as assistant managers. They
all stated they routinely worked more than 55 hours per week
and spent the majority of time performing tasks ordinarily
performed by hourly employees (for example, filling in when
needed as cooks, servers, bussers or kitchen staff), for which they
received no overtime compensation. (Id. at p. 369.)
       The trial court denied the motion for class certification on
May 23, 2012. Based on Saldana’s, Eriksen’s and Rankin-
Stephens’s concession at their depositions that the amount of
time they spent on particular tasks varied from day to day and
their inability to estimate the number of hours spent on
individual exempt and nonexempt tasks, the court found that
they had failed to establish that their claims were typical of the
class or that they could adequately represent the class. In
addition, although acknowledging the existence of common
questions of law and fact, the court, citing evidence provided by



                                 7
the restaurant entities, concluded there remained significant
individual disputed issues of fact relating to the amount of time
spent by each class member on particular tasks. As a result, the
court ruled common questions did not predominate and a class
action would not be the superior means of resolving the litigation.
(Joe’s Crab Shack II, supra, 231 Cal.App.4th at pp. 371-372.)
       The Martinez parties filed a notice of appeal on July 13,
2012. We initially reversed the trial court’s order in a
nonpublished decision filed November 12, 2013. As we noted in
our opinion, Duran v. U.S. Bank National Assn. (2014)
59 Cal.4th 1 (Duran) was then pending before the Supreme
Court. Following our decision, the Supreme Court granted the
restaurant entities’ petition for review and eventually transferred
the matter to us on July 30, 2014 for reconsideration in light of
its decision in Duran.
       On November 14, 2014 we filed our revised opinion, once
again reversing the trial court’s order. (Joe’s Crab Shack II,
supra, 231 Cal.App.4th 362.) We held, in light of the principles
established in Sav-On Drug Stores, Inc. v. Superior Court (2004)
34 Cal.4th 319 (Sav-On), Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, Duran, supra, 59 Cal.4th 1, and
Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522
(another then-recent Supreme Court decision discussing the
predominance issue in the context of a wage and hour class
action), the trial court had failed to adequately assess the means
by which the Martinez parties’ theory of recovery could be proved
through resolution of common questions of fact and law. In
particular, we explained, “courts in overtime exemption cases
must proceed through analysis of the employer’s realistic
expectations and classification of tasks rather than asking the




                                8
employee to identify in retrospect whether, at a particular time,
he or she was engaged in an exempt or nonexempt task.” (Joe’s
Crab Shack II, at p. 382.) We also stated, “[W]e understand from
Brinker, Duran and Ayala that classwide relief remains the
preferred method of resolving wage and hour claims, even those
in which the facts appear to present difficult issues of proof. By
refocusing its analysis on the policies and practices of the
employer and the effect those policies and practices have on the
putative class, as well as narrowing the class if appropriate, the
trial court may in fact find class analysis a more efficient and
effective means of resolving plaintiffs’ overtime claim.” (Id. at
p. 384.)
       A petition for rehearing was denied on December 3, 2014.
The Supreme Court denied review on February 11, 2015. Our
remittitur issued on February 26, 2015, returning jurisdiction
over the case to the trial court. A total of 958 days (two years,
228 days) elapsed between the filing of the Martinez parties’
notice of appeal and issuance of our remittitur.
       3. Discovery Issues Following Remand
       On January 16, 2015, prior to the Supreme Court’s denial
of review and our issuance of the remittitur in the class
certification appeal, the Martinez parties propounded additional
discovery directed to class action issues, including an e-discovery
request seeking production of all electronic mail communications
between September 7, 2003 and the date of the request related to
the “realistic expectations of the salaried positions in a Joe’s Crab
Shack Restaurant,” the “expectations” for those positions and the
discretion or independent judgment enjoyed by employees in
those positions. When nothing was produced, the Martinez
parties moved on July 7, 2015 to compel further responses from




                                  9
                                             7
Crab Addison and Ignite Restaurant Group. On September 28,
2015 the court granted the motion to compel in part, ordering
production of electronically stored information, but limiting the
search terms to be used and imposing other conditions relating to
issues of technological feasibility. The court directed the parties
to meet and confer regarding a protective order, to discuss
potential sampling techniques and to develop a written
                   8
inspection protocol.
      Actual production of electronically stored information did
not occur until April 26, 2016 at which point Crab Addison and
Ignite Restaurant Group provided more than 83,000 pages of
responsive material, primarily emails. During this period the
court set periodic status conferences, approximately every two
weeks, for an update on compliance with its discovery order. At a
May 10, 2016 hearing counsel for Crab Addison and Ignite
Restaurant Group represented that all remaining documents



7
       In their reply brief the Martinez parties explain, albeit
without any citation to the appellate record, that Landry’s
Restaurants had responded to the e-discovery demand by stating
it retained no records, including emails, when it sold the
restaurant chain to Joe’s Crab Shack Holdings in November
2006. Accordingly, the motion to compel was directed only to
Crab Addison and Ignite Restaurant Group, not Landry’s
Restaurants.
8
     Although the court’s tentative ruling stated it intended to
schedule a hearing on a class certification motion when it heard
the motion to compel, no such hearing date was set on
September 28. The court did schedule a further hearing to
monitor continuing e-discovery issues.



                                10
would be produced within the next few weeks. Additional
materials were provided through the end of June 2016.
      4. Martinez’s Motion To Set Trial and the Motion To
         Dismiss
                                   9
       On June 30 or July 1, 2016 the Martinez parties moved to
sever Martinez’s individual claims (as discussed, the court had
previously ruled he could not serve as a class representative) and
to set them for trial within the next 45 to 60 days. Alternatively,
the Martinez parties asked the court to confirm that the five-year
period to bring their class action to trial, with appropriate tolling,
did not expire until July 23, 2017 and to set a trial date to take
place after the court ruled on class certification but before
July 23, 2017.
       On June 30, 2016 Crab Addison and Ignite Restaurant
Group moved to dismiss the action with prejudice pursuant to
sections 583.310 and 583.360 on the ground the Martinez parties
had failed to bring their lawsuit to trial within five years, as
extended. On July 7, 2016 Landry’s Restaurants filed a notice of
joinder in the motion to dismiss.
       Both sides’ motions were fully briefed. On August 3, 2016,
after hearing argument, the court granted the motion to dismiss
the case, agreeing with Crab Addison, Ignite Restaurant Group
and Landry’s Restaurants’ position that the five-year period had
been extended only a total of 1,033 days (75 days during the

9
      The Los Angeles Superior Court’s case summary indicates
the Martinez parties’ motion was filed on June 30, 2016. The
Martinez parties’ opening brief gives the filing date as July 1,
2016; the table of contents in their Appellants’ Appendix gives
the date as June 29, 2016. The copy of the document included in
the Appellants’ Appendix has no file stamp.



                                 11
period of removal to federal district court and 958 days during
the class certification appeal), and that the time to bring the
action to trial had expired on August 26, 2015. The court ordered
the Martinez parties’ motion to set trial off-calendar as moot.
      Judgment was entered on August 24, 2016.
                        CONTENTIONS
       The parties agree the jurisdiction of the trial court was
suspended for a total of 1,033 days while the action was pending
in the federal district court following removal (75 days) and
during the Martinez parties’ appeal of the denial of their motion
for class certification (958 days). The Martinez parties concede
there are no other mandatory exclusions from the five-year period
to bring an action to trial but contend it was impossible,
impracticable or futile to bring the action to trial during the writ
proceedings reviewing the order to produce contact information
for putative class members (319 days), the time between the
district court’s order remanding the case following removal and
the Ninth Circuit’s affirmance of that order (169 days), and the
nine-month period between the order to produce electronically
                                                           10
stored information and full production of that material.

10
      During its 10-year-plus history, this lawsuit has been
assigned to several different departments of the Los Angeles
Superior Court; and a number of judges have had responsibility
for the case and decided substantive motions. Most recently,
Judge Michael J. Raphael oversaw discovery proceedings
following our reversal of the class certification order. While
Judge Raphael was sitting by assignment with the court of
appeal, however, the motion to dismiss was heard by
Judge Allan J. Goodman. We reject as not legally cognizable the
Martinez parties’ complaint that Judge Goodman, who had the
benefit of extensive briefing and oral argument before granting


                                12
                          DISCUSSION
       1. Sections 583.310 and 583.340 and the Standard of
          Review
       Section 583.310 provides, “An action shall be brought to
trial within five years after the action is commenced against the
defendant.” In computing the five-year period within which an
action must be brought to trial, however, “there shall be excluded
the time during which any of the following conditions existed: [¶]
(a) The jurisdiction of the court to try the action was suspended.
[¶] (b) Prosecution or trial of the action was stayed or enjoined.[
                                                                          11]


[¶] (c) Bringing the action to trial, for any other reason, was
                                                      12
impossible, impracticable, or futile.” (§ 583.340.)        Dismissal is



the motion, was not sufficiently familiar with the facts of the case
to exercise informed discretion in determining whether it was
impossible, impracticable or futile to bring the action to trial
within the period mandated by sections 583.310 and 583.340
11
      Section 583.340, subdivision (b), applies only when a stay
encompasses all proceedings in the action and does not include
partial stays. (Bruns v. E-Commerce Exchange, Inc. (2011)
51 Cal.4th 717, 722; see Gaines v. Fidelity National Title Ins. Co.
(2016) 62 Cal.4th 1081, 1094.)
12
       In addition to the tolling provisions of section 583.340,
section 583.350 provides, “If the time within which an action
must be brought to trial pursuant to this article is tolled or
otherwise extended pursuant to statute with the result that at
the end of the period of tolling or extension less than six months
remains within which the action must be brought to trial, the
action shall not be dismissed pursuant to this article if the action
is brought to trial within six months after the end of the period of
tolling or extension.”



                                 13
mandatory if the requirements of section 583.310 are not met and
an exception provided by statute does not apply. (§ 583.360,
subd. (b); Gaines v. Fidelity National Title Ins. Co. (2016)
62 Cal.4th 1081, 1090 (Gaines); see McDonough Power
Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 530.)
       “Under 583.340(c), the trial court must determine what is
impossible, impracticable, or futile ‘in light of all the
circumstances in the individual case, including the acts and
conduct of the parties and the nature of the proceedings
themselves. [Citations.] The critical factor in applying these
exceptions to a given factual situation is whether the plaintiff
exercised reasonable diligence in prosecuting his or her case.’
[Citations.] A plaintiff’s reasonable diligence alone does not
preclude involuntary dismissal; it is simply one factor for
assessing the existing exceptions of impossibility,
impracticability, or futility. . . . Determining whether the
subdivision (c) exception applies requires a fact-sensitive inquiry
and depends ‘on the obstacles faced by the plaintiff in prosecuting
the action and the plaintiff’s exercise of reasonable diligence in
overcoming those obstacles.’ [Citation.] ‘“[I]mpracticability and
futility” involve a determination of “‘excessive and unreasonable
difficulty or expense,’” in light of all the circumstances of a

      Here, the additional 1,033 days during which the trial court
was without jurisdiction extended the five-year period from
September 7, 2012 to July 7, 2015. Because the period of tolling
resulting from the appeal in Joe’s Crab Shack II, supra,
231 Cal.App.4th 362 ended on February 26, 2015, less than
six months before July 7, 2015, the trial court ruled pursuant
section 583.350 that the Martinez parties had six months from
February 26, 2015—that is, until August 26, 2015—to bring the
action to trial.



                                14
particular case.’” (Bruns v. E-Commerce Exchange, Inc. (2011)
51 Cal.4th 717, 730-731 (Bruns); see also Howard v. Thrifty Drug
& Discount Stores (1995) 10 Cal.4th 424, 438.)
       The plaintiff bears the burden of proving the circumstances
justifying application of section 583.340, subdivision (c)’s
exception for impossibility, impracticability or futility. (Bruns,
supra, 51 Cal.4th at p. 731.) “[A] condition of impossibility,
impracticability, or futility need not take the plaintiff beyond the
five-year deadline to be excluded; it will be excluded even if the
plaintiff has a reasonable time remaining after the period to
bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.)
But the plaintiff must establish a causal connection between the
claimed circumstances of impracticability and the plaintiff’s
failure to move the case to trial. (Ibid.; see DeSantiago v. D & G
Plumbing, Inc. (2007) 155 Cal.App.4th 365, 372; Tamburina v.
Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328.)
       We review for an abuse of discretion the trial court’s
determination not to exclude periods during which plaintiffs
contend it was impossible, impracticable or futile to bring the
action to trial within the meaning of section 583.340,
subdivision (c). (Gaines, supra, 62 Cal.4th at p. 1100 & fn. 8
[the abuse of discretion standard “has long been applied in this
context”]; Bruns, supra, 51 Cal.4th at p. 731 [“[t]he trial court has
discretion to determine whether that exception applies, and its
decision will be upheld unless the plaintiff has proved that the
trial court abused its discretion”].)




                                 15
      2. The Appeal of the District Court’s Remand Order Did
         Not Make It Impracticable or Futile To Bring the Case to
         Trial Within the Statutory Period
       The trial court lost jurisdiction on March 25, 2009 when
Crab Addison and Joe’s Crab Shack Holdings filed notice the case
had been removed to federal court. When the clerk of the district
court sent notice of remand on June 8, 2009, 75 days later, the
trial court once again had jurisdiction over the action: “The
appeal of a remand order does not deprive the state court of
jurisdiction unless a stay is obtained from the federal court.
[Citations.] ‘[T]he pendency of the federal appeal [does] not, in
and of itself, serve to oust the state court of jurisdiction to
proceed.’ [Citation.] Although a removal petition deprives the
state court of jurisdiction as soon as it is filed and served upon
the state court, jurisdiction returns to the state court when a
remand order is filed and served on the state court, unless that
order is stayed.” (People v. Bhakta (2006) 135 Cal.App.4th 631,
636.)
       Although jurisdiction was returned to the superior court on
June 8, 2009, at the hearing on the motion to dismiss the
Martinez parties admitted they did nothing to enforce the order
compelling disclosure of putative class members’ contact
information, which they argue was essential to advance their
case toward trial, until after the Ninth Circuit affirmed the
remand order on November 24, 2009. Nor did they seek a stay of
state court proceedings while that appeal was pending from
either the federal court of appeals or the superior court. The
                                                          13
Martinez parties note that a CAFA appeal (if permitted)

13
      With limited exceptions, an order remanding a case to state
court following removal is not reviewable on appeal. In adopting


                               16
proceeds on an expedited basis (see 28 U.S.C. § 1453(c)(2) & (3))
and, in light of the appeal, the question of federal or state
jurisdiction remained open. Yet they provide no explanation why
any state court discovery obtained while the appeal was pending
would not have been available for use in federal court if the
remand order had been reversed and, therefore, why it was
impracticable for them to continue to pursue discovery during
that period.
       In light of the Martinez parties’ failure to exercise
reasonable diligence in prosecuting their case between June 8
and November 24, 2009, it was not an abuse of discretion for the
trial court to include that time within its calculation of the five-
year mandatory period to bring the action to trial. (See Bruns,
supra, 51 Cal.4th at p. 731 [“[t]he reasonable diligence standard
is an appropriate guideline for evaluating whether it was
impossible, impracticable, or futile for the plaintiff to comply with
[the statutory five-year constraint] due to causes beyond his or
her control”; internal quotation marks omitted]; Moran v.
Superior Court (1983) 35 Cal.3d 229, 228 [plaintiff’s reasonable
diligence is “critical factor” in evaluating impracticability of
proceeding to trial]; see also Lauriton v. Carnation Co. (1989)
215 Cal.App.3d 161, 165 [“[s]ince appellant did not use every




CAFA and permitting removal of certain types of class action
lawsuits, Congress provided, “a court of appeals may accept an
appeal from an order of a district court granting or denying a
motion to remand a class action to the State court from which it
was removed if application is made to the court of appeals not
more than 10 days after entry of the order.” (28 U.S.C.
§ 1453(c)(1).)



                                 17
reasonable effort to bring the action to trial, he did not exercise
reasonable diligence in prosecuting this case”].)
      3. Any Delay in Fully Complying with the Electronic
         Discovery Order Did Not Make It Impracticable or Futile
         To Bring the Case to Trial Within the Statutory Period
        “Generally, delays encountered in discovery are part of the
‘normal delays involved in prosecuting lawsuits’ and do not
excuse failure to bring a case to trial within the five-year limit.”
(Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000,
1016; see Bruns, supra, 51 Cal.4th at p. 731 [“‘[t]ime consumed by
the delay caused by ordinary incidents of proceedings, like
disposition of demurrer, amendment of pleadings, and the normal
time of waiting for a place on the court’s calendar are not within
the contemplation of these exceptions [for periods during which it
was impossible, impracticable or futile to bring the action to
trial]’”].) Notwithstanding this general rule, the Martinez parties
contend Crab Addison and Joe’s Crab Shack Holdings’ delay in
fully responding to their demand for discovery of emails relating
to the “realistic expectations” for, and degree of independence and
discretion enjoyed by, salaried employees at Joe’s Crab Shack
restaurants made it impracticable for them to move for class
certification and bring their action to trial for the nine months
between September 28, 2015, when the court granted in part
their motion to compel, and the end of June 2016 when
production of the electronically stored information was
completed. It was not an abuse of discretion for the trial court to
reject that argument based on counsel’s lack of reasonable
             14
diligence.

14
     Judge Goodman observed that there had not been vigorous
law and motion practice by plaintiffs’ counsel insisting on


                                 18
       As discussed, the electronic discovery at issue was not
propounded until January 2015, more than seven years after the
lawsuit was filed. During that time substantial class discovery
had occurred and two motions for class certification were
litigated. Yet the Martinez parties’ suggest their delay in
propounding this additional class discovery was excusable
because it was based on guidance provided by our November 14,
2014 decision in Joe’s Crab Shack II, supra, 231 Cal.App.4th 362.
This argument is misplaced.
       At the heart of the Martinez parties’ claims of
misclassification and unpaid wages is Industrial Welfare
Commission (ICW) wage order No. 5-2001, which governs the
“Public Housekeeping Industry,” a category that includes
restaurants (Cal. Code Regs., tit. 8, § 11050, subd. (2)(P)(1)). This
wage order requires employers to provide overtime pay to
employees working more than eight hours in one day or 40 hours
in one week (id., subd. 3(A)) but exempts from this requirement,
among others, persons employed in managerial or executive
capacities (id., subd. 1(B)(1)). The wage order defines in general
terms the nature of the duties and responsibilities of employees
who fall with this category (id., subd. 1(B)(1)(a)-(d)) and provides
that the exemption applies to an employee who is “primarily”
engaged in those activities (id., subd. 1(B)(1)(e)), that is, “more
than one-half of the employee’s work time” is devoted to them
(id., subd. 2(O)). In determining whether the exemption applies,


immediate production of the electronic discovery during the
four months he had been responsible for the case: “You weren’t
in here demanding. There were discussions. There were
agreements. But there was no metaphorically pounding the
table, saying, ‘Where’s the beef?’”



                                 19
wage order No. 5 states, “The work actually performed by the
employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee
spends on such work, together with the employer’s realistic
expectations and the realistic requirements of the job shall be
considered in determining whether the employee satisfies this
requirement.” (Id., subd. 1(B)(1)(e), italics added.)
       The significance of the employer’s realistic expectations and
the realistic requirements of the job in evaluating whether an
employee was properly classified as exempt from overtime pay
requirements, as set forth in various ICW wage orders, including
wage order No. 5, was recognized nearly 20 years ago by the
Supreme Court in Ramirez v. Yosemite Water Co. (1999)
20 Cal.4th 785, 802 (in evaluating applicability of wage order
exemption for outside salespersons, trial court should inquire into
“the realistic requirements of the job”). And the need to focus on
those realistic expectations and requirements to determine
whether common issues predominate and a class action provides
an effective means of resolving the plaintiffs’ overtime claims—
our holding in Joe’s Crab Shack II, supra, 231 Cal.App.4th 362—
was central to the Supreme Court’s landmark class action ruling
in Sav-On, supra, 34 Cal.4th at pages 336-337: “Any dispute over
‘how the employee actually spends his or her time’ [citation], of
course, has the potential to generate individual issues. But
considerations such as ‘the employer’s realistic expectations’
[citation] and ‘the actual requirements of the job’ [citation] are
likely to prove susceptible of common proof.” (See Joe’s Crab
Shack II, at p. 382 [quoting this language from Sav-On]; see also
Duran, supra, 59 Cal.4th at p. 54 (conc. opn. of Liu, J.) [“Sav-On
made clear that variation in how employees spend their time does




                                20
not, by itself, preclude a finding that an employer’s realistic
expectations are susceptible to common proof”].)
      Thus, well before our decision in Joe’s Crab Shack II,
counsel representing the Martinez parties should have realized
the significance for class certification of the information
requested by their January 2015 demand for electronically stored
            15
information. To the extent they had not previously conducted
discovery regarding Landry’s Restaurants’ and Crab Addison’s
realistic expectations and realistic job requirements for salaried
employees at Joe’s Crab Shack restaurants, the Martinez parties
alone were responsible for that omission.
       Indeed, nothing in our opinion indicated additional
discovery was required or supplemental information needed
before the trial court reevaluated the Martinez parties’ class
certification motion. To the contrary, based on the record before
us, we held the class was adequately represented by Saldana,
Eriksen and Rankin-Stephens and their claims were typical of
the class, eliminating those issues from further consideration.
(Joe’s Crab Shack II, supra, 231 Cal.App.4th at pp. 375-377.)
We then held the trial court had failed to adequately assess the
means by which the Martinez parties’ theory of recovery could be
proved through common questions of fact and law, relying in
substantial part on the Supreme Court’s analysis in Sav-On

15
       The Electronic Discovery Act (Stats. 2009, ch. 5, § 1)
establishing procedures to obtain discovery of electronically
stored information was adopted by the Legislature as urgency
legislation in 2009 and was effective June 29, 2009, two months
after issuance of our remittitur in Joe’s Crab Shack I and more
than eight months before the trial court decided the first motion
for class certification in this litigation.



                                21
(Joe’s Crab Shack II, at pp. 382-383); and we directed the trial
court to reconsider whether class certification provided a superior
method of resolving their claims “[b]y refocusing its analysis on
the policies and practices of the employer and the effect those
policies and practices have on the putative class” (id. at p. 384)—
information that already appeared in the record. (Compare Lee v.
Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1339 [reversing
denial of class certification and directing court, after ordering
additional discovery, “to permit the parties to file supplemental
papers regarding the propriety of class certification and to
conduct a new class certification hearing”].)
       The Martinez parties’ election to conduct additional class
discovery, rather than immediately renew their class certification
motion, was a tactical decision. The time devoted to this
discovery effort was properly included by the trial court in
calculating section 583.310’s five-year deadline. (See Bruns,
supra, 51 Cal.4th at p. 731 [impossibility, impracticability or
futility must be due to causes beyond plaintiff’s control].)
      4. We Need Not Determine Whether This Court’s Writ
         Review of the Order Compelling Disclosure of Putative
         Class Members’ Contact Information Made It
         Impracticable or Futile To Bring the Case to Trial
         Within the Statutory Period
      In Lee v. Dynamex, Inc., supra, 166 Cal.App.4th 1325, we
held the trial court’s denial of the named plaintiff’s motion to
compel disclosure of potential class members’ identity and contact
information directly conflicted with the Supreme Court’s decision
in Pioneer Electronics (USA), Inc. v. Superior Court (2007)
40 Cal.4th 360, as well as two then-recent decisions from our




                                22
      16
court, and the erroneous discovery ruling improperly interfered
with the plaintiff’s ability to establish the necessary elements for
class certification. (Lee, at pp. 1329, 1338.) Because the plaintiff
lacked the means to develop evidence to support the motion for
class certification, we declined to review that order and instead
remanded the matter for additional discovery and a new class
certification hearing. (Id. at pp. 1338-1339.)
       Relying on our holding that putative class member contact
information is essential to a plaintiff’s motion for class
certification, as well as the principle that a class action is not
ready to proceed to trial until the court has ruled on class
certification (see, e.g., Fireside Bank v. Superior Court (2007)
40 Cal.4th 1069, 1083 [“in the absence of a defense waiver [trial
courts] should not resolve the merits in a putative class action
case before class certification and notice issues absent a
compelling justification for doing so”]), the Martinez parties
argue it was impossible to bring their action to trial during the
11 months that Crab Addison’s writ petition challenging the trial
court’s order to produce that information was pending in this
court.
       In contrast, emphasizing that only production of putative
class members’ identity and contact information was stayed
during the pendency of Joe’s Crab Shack I and that other
discovery took place while the writ petition was being litigated,

16
       In addition to Pioneer Electronics (USA), Inc. v. Superior
Court, supra, 40 Cal.4th 360, the trial court’s discovery order
conflicted with our decisions in Puerto v. Superior Court (2008)
158 Cal.App.4th 1242 and Belaire-West Landscape, Inc. v.
Superior Court (2007) 149 Cal.App.4th 554. (See Lee v. Dynamex,
Inc., supra, 166 Cal.App.4th at pp. 1337-1338.)



                                 23
Landry’s Restaurants argues the writ proceeding was one of the
ordinary incidents of litigation and it was not an abuse of
discretion for the trial court to include this period in determining
the five-year deadline to bring the case to trial.
       We need not resolve this issue. As extended by the period
of removal to federal district court (75 days) and the appeal in
Joe’s Crab Shack II (958 days), but for the six-month provision in
                17
section 583.350 the time to bring the action to trial expired on
July 7, 2015. Adding the time Joe’s Crab Shack I was pending,
                                  18
however one calculates that time, would still result in the five-
year deadline falling at least several weeks prior to the filing of
both the motion to dismiss and the Martinez parties’ motion to
sever and set for trial Martinez’s individual claims. Accordingly,


17
      See footnote 12, above.
18
       As discussed, the Martinez parties contend 331 days should
be excluded from the five-year deadline to bring the case to trial,
measured from the trial court’s order granting the motion to
compel production on May 19, 2008 through issuance of our
remittitur in Joe’s Crab Shack I, supra, 169 Cal.App.4th 958 on
April 13, 2009. However, because the notice of removal to federal
court was filed on March 25, 2009, the final 19 days of this period
is already excluded in evaluating the time to bring the case to
trial. In addition, even if we were to reach the issue and agree
with the Martinez parties’ argument, it is unclear whether the
affected period properly begins on May 19, 2008, when the trial
court issued its order compelling discovery, as the Martinez
parties’ contend; May 29, 2008, when Crab Addison filed its
petition for writ of mandate; or June 3, 2008, when we ordered
Martinez to file a response to the writ petition and stayed
enforcement of the trial court’s orders to produce putative class
members’ identity and contact information.



                                 24
any error in refusing to exclude this time from the five-year
period would be harmless.
                          DISPOSITION
      The judgment is affirmed. Landry’s Restaurants is to
recover its costs on appeal.



                                          PERLUSS, P. J.



We concur:



             SEGAL, J.


                         *
             WILEY, J.




*
      Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                                25
Filed 8/28/18
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION SEVEN


ROBERTO MARTINEZ et al.,               B278513

        Plaintiffs and Appellants,     (Los Angeles County
                                       Super. Ct. No. BC377269)
        v.
                                          ORDER CERTYFING
LANDRY’S RESTAUANTS, INC.,                OPINION FOR
                                          PUBLICATION
        Defendant and Respondent.         (NO CHANGE IN
                                          JUDGMENT)



       THE COURT:
       The opinion in this case filed August 1, 2018 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), respondent’s request pursuant to California Rules
of Court, rule 8.1120(a), for publication is granted.
       IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
      ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.


___________________________________________________________
                                                     *
   PERLUSS, P. J.         SEGAL, J.        WILEY, J.




*
      Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
                                2
