Tellez v. Rich Voss Trucking, Inc. , 193 Cal. Rptr. 3d 403 ( 2015 )

Filed 9/30/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
MIGUEL TELLEZ H040375
(Santa Clara County
Plaintiff and Appellant, Super. Ct. 1-12-CV-227103)
v.
RICH VOSS TRUCKING, INC., et al.,
Defendants and Respondents.
Plaintiff Miguel Tellez appeals the trial court’s denial of his motion for class
certification in what is essentially a wage-and-hour dispute. For reasons that follow, we
must reverse the order denying class certification and remand to the trial court for an
explanation of the court’s reasoning in denying the motion.
Facts and Proceedings Below
It is undisputed that plaintiff is a truck driver who worked for Rich Voss Trucking.
On June 22, 2012, plaintiff filed a putative class action complaint against Rich
Voss Trucking, Inc. (RVT), Stevens Creek Quarry, Inc. (SCQ), and Richard A. Voss
(collectively defendants) alleging wage and hour violations. Specifically, plaintiff
contended that defendants were his joint employers and the employers of all similarly
situated non-exempt current and former employees of defendants. Plaintiff’s class action
complaint alleged 10 causes of action: (1) failure to provide required meal periods
(Lab. Code, §§ 226.7, 510, 512, 1194, 11971: IWC2 wage order No. 16-2001), (2) failure
1
All further statutory references are the the Labor Code unless otherwise
indicated.
2
IWC stands for Industrial Welfare Commission.
to provide required rest periods (§§ 226.7, 512; IWC wage order No. 16-2001), (3) failure
to pay overtime wages (§§ 226, 510, 1194, 1197; IWC Order No. 16-2001), (4) failure to
pay minimum wage (§§ 226, 510, 1194, 1197; IWC Order No. 16-2001), (5) failure to
pay all wages due to discharged or quitting employees (§§ 201, 202, 203), (6) failure to
maintain required records (§§ 1174, 1174.5), (7) failure to indemnify employees for
necessary expenditures incurred in the discharge of duties (§ 2802), (8) failure to provide
accurate itemized wage statements (§§ 226, 226.3), and (9) unfair and unlawful business
practices (Bus. & Prof. Code, §§ 17200-17208). Plaintiff alleged a tenth cause of action
under the Private Attorneys General Act of 2004 for a representative action for civil
penalties (§§ 2698, 2699.5). In the complaint, plaintiff alleged that he was bringing the
action on “behalf of himself and others similarly situated current and former employees
in the State of California (collectively PLAINTIFFS) of RICH VOSS TRUCKING, INC.
(RVS), STEVENS CREEK QUARRY (STEVENS CREEK) and DOES 1-100
(collectively DEFENDANTS) . . . .”
On the same day that plaintiff filed his original complaint in the class action
lawsuit, he filed a separate complaint (the individual complaint) against defendants and
Steve A. Martini. This complaint alleged three causes of action: (1) disability
discrimination, disability harassment, failure to take all reasonable steps to prevent
discrimination, failure to accommodate, failure to engage in the interactive process, and
retaliation (Gov. Code, § 12940); (2) racial discrimination, racial harassment, failure to
take all reasonable steps to prevent discrimination and harassment (Ibid.); and
(3) national origin/ancestry discrimination, national origin/ancestry harassment, and
failure to take all reasonable steps to prevent discrimination and harassment (Ibid.).
Although the two cases were consolidated for trial and plaintiff filed a first amended
2
complaint3 in both cases, it is only with the denial of class certification and the denial of
his motion to amend the complaint to add a new class representative in the class action
lawsuit that plaintiff takes issue.
On April 3, 2013, defendants brought a motion to strike the class allegations
because plaintiff had failed to file a motion to certify the class.4 Defendants asserted that
plaintiff was not a suitable class representative because his claims were not typical, as
plaintiff worked for RVT only as a truck driver; and truck drivers are regulated by the
Federal Department of Transportation Regulations and are exempt from California’s
overtime rules. Further, defendants contended that plaintiff was not an adequate
representative because of his impaired credibility since he had lied on his employment
application when he told RVT that he had never been convicted of a felony.5
Plaintiff opposed the motion as “an improper attempt to ‘slip through the
backdoor’ with a preemptive opposition to a motion for class certification that ha[d] not
yet been filed”; plaintiff blamed defendants for his delay in not filing a motion for class
certification by not providing documents relevant to the class allegations. In reply,
defendants asserted that plaintiff’s attempt to blame them for the delay in filing the
motion for class certification was misplaced and that their motion to strike the class
allegations should be granted so the matter could proceed to trial. Plaintiff filed an
3
In plaintiff’s first amended complaint in the class action case, plaintiff alleged
that he was bringing the action “on behalf of himself and the following similarly situated
class of individuals (CLASS MEMBERS): all current and former non-exempt employees
of DEFENDANTS in the State of California at any time within the period beginning four
years prior to the filing of [the] action and ending at the time [the] action settles or
proceeds to final judgment (the CLASS PERIOD).”
4
We note that generally, in cases involving wage and hour claims, the issue of
class suitability should not be determined at the pleading stage of the case. (Prince v.
CLS Transportation, Inc. (2004) 118 Cal. App. 4th 1320, 1325.)
5
In his deposition testimony, plaintiff conceded that he was convicted of
committing a lewd or lascivious act upon a child by force (Pen. Code, § 288, subd. (b)).
3
ex parte application for an order to extend the deadline to file his motion for class
certification. The court granted the request and extended the time for plaintiff to file the
motion until August 9, 2013.6
On August 12, 2013, plaintiff filed a motion for leave to amend the complaint to
add Christopher Hart as the new class representative and a memorandum of points and
authorities in support of his motion for class certification. Attached to the memorandum
of points and authorities were several exhibits including a declaration by Keila A.
Carrasco,7 who had analyzed time records of the employees of SQC and RVT; plaintiff
attached over 12,000 pages of time records as exhibits to the motion. Ms. Carrasco
averred that in reviewing the records she found violations that included missed meal
breaks, late meal breaks, missed second meal breaks, unpaid overtime hours after
working an 8-hour shift, unpaid overtime hours after working a 10-hour shift, and unpaid
double time hours after working a 12-hour shift.
Defendants responded to plaintiff’s motion by claiming that class certification was
not appropriate because there were not common questions of law or fact that would
predominate. Defendants asserted that plaintiff’s claim for overtime was misplaced
because RVT truck drivers are exempt from overtime requirements,8 and because RVT
6
Plaintiff filed a second application for an order to extend the deadline to file the
class certification, which was denied.
7
It appears that Ms. Carrasco was employed in the law offices of plaintiff’s
counsel. Although she graduated with a J.D. from the University of California, Hastings
in 2006, she was employed as a law clerk. Her analysis of the time records constituted a
basic clerical and arithmetical summary of the information contained in the documents
produced by the defendants.
8
We assume that defendants were arguing that they came within the motor carrier
exemption in the California Labor Code. “IWC Wage Order No. 9, regulating wages,
hours and working conditions in the transportation industry, excludes from its overtime
pay requirements ‘employees whose hours of service are regulated by . . . the United
States Department of Transportation Code of Federal Regulations, Title 49, Sections
395.1 to 395.13.’ [Citations.]” (Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d
(continued)
4
and SCQ have policies and procedures that fully comply with the California Labor Code
and California Wage Orders, individualized inquiries would be necessary to prove
whether or not the policies were followed. Defendants again raised the issue of
plaintiff’s not being an adequate representative because of his credibility issues.
Defendants argued that they were prepared for trial and by allowing plaintiff to amend
the complaint to add a new class representative they would have to reopen discovery,
which would allow plaintiff another delay to bring a second motion for class certification
and significantly delay the resolution of the case.
At some point the court set the hearing on the motion for class certification on
September 10, 2013.
At the hearing on September 10, 2013, after counsel announced their presence for
the record, the court noted that it had “received no phone call regarding the motion
itself.” The court asked if counsel wanted to go ahead and set the trial date. Plaintiff’s
counsel told the court that he “would like to be heard on both the motion to amend and
the motion for class certification.” The court cut off plaintiff’s counsel. The court stated
that plaintiff’s counsel had not contacted the court and asked whether he had contacted
opposing counsel. Plaintiff’s counsel apologized to the court for not contacting opposing
counsel, but explained that he had been out of the office in a mediation and had a trial
starting that day.
The court told counsel, “We can’t hear the argument. You’ll have to talk with
[opposing counsel]. But right now we’re going to discuss trial setting.” Plaintiff’s
counsel stated that he had “no problem with setting it now.” However, when plaintiff’s
821, 825 (Watkins).) “Sections 395.1 to 395.13 set the federal maximum hour
restrictions for employees of motor carriers. However, these regulations are only
applicable to motor carriers and drivers engaged in interstate commerce.” (Ibid.) As far
as we can tell from the record, defendants made no showing that they were involved in
interstate commerce rather than intrastate commerce.
5
counsel pointed out to the court that the tentative decision consisted of one sentence
saying that the motion was denied and asked if the court was going to issue a more
detailed ruling,9 The trial judge responded, “I don’t intend to.” When counsel asked for
“some kind of findings on the record” for purposes of appeal so that on appeal this court
“would have some basis to know whether there was [sic] issues with numerosity,
capability, commonality, adequacy—” the court cut off plaintiff’s counsel and stated that
it was “not discussing the motion right now. There was no phone call.”10
9
Defendants do not dispute the fact that the tentative decision stated only that the
motion was denied.
10
We assume that the court’s reference to “no phone call” was a citation to a Santa
Clara County local rule of court. The Superior Court of Santa Clara County, Local Rules,
rule 8E provides, “The Court follows CRC 3.1308(a)(1) for those departments that have
elected to issue tentative rulings in civil law and motion and discovery matters. Counsel
and litigants are responsible for determining whether the department hearing their motion
has made this election. Those departments issuing tentative rulings will do so generally
by 2:00 p.m., and no later than 3:00 p.m., on the court day preceding the scheduled
hearing. If the Court has not directed oral argument, a party contesting a tentative ruling
must give notice of its intention to appear to the other side and the Court no later than
4:00 p.m. on the court day preceding the scheduled hearing. Appearances may be
[made] by telephone (through CourtCall) or in person. The tentative ruling will
automatically become the order of the Court on the scheduled hearing date if the Court
has not directed oral argument and if the contesting party fails to timely notice an
objection to the other side and the Court. Tentative rulings will be posted on the Court’s
website, www.scscourt.org, where further information may be found. If a party does not
have access to the internet, the tentative ruling may be accessed by calling Court Services
at (408) 882-2515. Questions about these procedures may be addressed to the specific
department where the matter is to be heard.” (Italics added)
In turn, California Rules of Court, rule 3.1308(a) provides, “A trial court that
offers a tentative ruling procedure in civil law and motion matters must follow one of the
following procedures: [¶] (1) Notice of intent to appear required [¶] The court must
make its tentative ruling available by telephone and also, at the option of the court, by
any other method designated by the court, by no later than 3:00 p.m. the court day before
the scheduled hearing. If the court desires oral argument, the tentative ruling must so
direct. The tentative ruling may also note any issues on which the court wishes the
parties to provide further argument. If the court has not directed argument, oral argument
must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on
(continued)
6
The court’s order on plaintiff’s motion for class certification states, “Plaintiff’s
Motion for Class Certification is DENIED.” Similarly, the court’s order on plaintiff’s
motion for leave to amend the complaint states, “Plaintiff’s Motion for Leave to Amend
is DENIED.”
On appeal, plaintiff contends that the denial of certification cannot be affirmed as
a matter of law, because it states no “ ‘valid pertinent reason’ ” sufficient to uphold the
order.11
Discussion
Denial of Plaintiff’s Motion for Class Certification
At the outset we note that the denial of certification to an entire class is an
appealable order. (Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435 (Linder).) This
order has what has come to be known as the “death knell” effect of making further
proceedings in the action impractical because of denial of class action status. Our
Supreme Court has held that where an order has the “death knell” effect of making
further proceedings in the action impractical, the order is appealable. (See Daar v.
Yellow Cab Co. (1967) 67 Cal. 2d 695, 699 [the legal effect of the order is tantamount to a
dismissal of the action as to all members of the class other than plaintiff. It has virtually
demolished the action as a class action. If the propriety of such disposition could not
now be reviewed, it can never be reviewed].)
the court day before the hearing of the party’s intention to appear. A party must notify all
other parties by telephone or in person. The court must accept notice by telephone and, at
its discretion, may also designate alternative methods by which a party may notify the
court of the party’s intention to appear. The tentative ruling will become the ruling of the
court if the court has not directed oral argument by its tentative ruling and notice of intent
to appear has not been given.”
11
In addition, plaintiff contends that the superior court abused its discretion by
denying his motion for certification because no substantial evidence supports the denial.
As we shall explain, it is impossible to address this question as we have no idea upon
what basis the superior court denied the certification motion.
7
As our Supreme Court explained in Linder, supra, 23 Cal. 4th 429, “[c]ourts long
have acknowledged the importance of class actions as a means to prevent a failure of
justice in our judicial system. [Citations.] ‘ “By establishing a technique whereby the
claims of many individuals can be resolved at the same time, the class suit both
eliminates the possibility of repetitious litigation and provides small claimants with a
method of obtaining redress . . . .” ’ [Citation.] Generally, a class suit is appropriate
‘when numerous parties suffer injury of insufficient size to warrant individual action and
when denial of class relief would result in unjust advantage to the wrongdoer.’
[Citations.] But because group action also has the potential to create injustice, trial courts
are required to ‘ “carefully weigh respective benefits and burdens and to allow
maintenance of the class action only where substantial benefits accrue both to litigants
and the courts.” ’ [Citations.]” (Id. at pp. 434-435.)
“Section 382 of the Code of Civil Procedure authorizes class suits in California
when ‘the question is one of a common or general interest, of many persons, or when the
parties are numerous, and it is impracticable to bring them all before the court.’ To
obtain certification, a party must establish the existence of both an ascertainable class and
a well-defined community of interest among the class members. [Citations.] The
community of interest requirement involves three factors: ‘(1) predominant common
questions of law or fact; (2) class representatives with claims or defenses typical of the
class; and (3) class representatives who can adequately represent the class.’ [Citation.]
Other relevant considerations include the probability that each class member will come
forward ultimately to prove his or her separate claim to a portion of the total recovery and
whether the class approach would actually serve to deter and redress alleged wrongdoing.
[Citation.]” (Linder, supra, 23 Cal.4th at p. 435.)
“Class certification is generally not decided at the pleading stage of a lawsuit.
‘[T]he preferred course is to defer decision on the propriety of the class action until an
evidentiary hearing has been held on the appropriateness of class litigation.’ [Citation.]
8
However, if the defects in the class action allegations appear on the face of the complaint
or by matters subject to judicial notice, the putative class action may be defeated by a
demurrer or motion to strike. [Citation.]” (In re BCBG Overtime Cases (2008) 163
Cal. App. 4th 1293, 1298-1299.)
Since “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. The denial of certification to an entire class is an appealable order
[citations], but in the absence of other error, a trial court ruling supported by substantial
evidence generally will not be disturbed ‘unless (1) improper criteria were used [citation];
or (2) erroneous legal assumptions were made [citation]’ [Citation.] Under this standard,
an order based upon improper criteria or incorrect assumptions calls for reversal ‘ “even
though there may be substantial evidence to support the court’s order.” ’ [Citations.]
Accordingly, we must examine the trial court’s reasons for denying class certification.
‘Any valid pertinent reason stated will be sufficient to uphold the order.’ [Citation.]”
Linder, supra, 23 Cal.4th at pp. 435-436.)
Despite the great discretion afforded to the trial court, “appellate review of orders
denying class certification differs from ordinary appellate review. Under ordinary
appellate review, we do not address the trial court’s reasoning and consider only whether
the result was correct. [Citation.] But when denying class certification, the trial court
must state its reasons, and we must review those reasons for correctness. [Citation.]”
(Knapp v. AT & T Wireless Services, Inc. (2011) 195 Cal. App. 4th 932, 939 (Knapp);
Accord Linder, supra, 23 Cal.4th at p. 436 [we must examine the trial court’s reasons for
denying class certification].)
Defendants take the position that plaintiff is seeking to overturn the court’s ruling
for his own error. That is, plaintiff failed to request oral argument to contest the court’s
tentative ruling. We are not persuaded by this argument. Further, defendants argue that
the trial court is not required to state its reasons in the order denying the motion. While
9
defendant is correct that the trial court is not required to state its reasons in the actual
order denying the motion, (Knapp, supra, 195 Cal.App.4th at p. 939) we must be able to
discern from somewhere in the record “whether the trial court engaged in correct legal
analysis.” (Caro v. Proctor Gamble Company (1993) 18 Cal. App. 4th 644, 655.)
Defendants cite Walsh v. Ikon Office Solutions, Inc. (2007) 148 Cal. App. 4th 1440
(Walsh), Dailey v. Sears Roebuck & Co. (2013) 214 Cal. App. 4th 974 (Dailey) and
Grogan-Beall v. Ferdinand Roten Galleries, Inc. (1982) 133 Cal. App. 3d 969
(Grogan-Beall), for the proposition that we can “infer” from the record the reasons upon
which the lower court relied in denying class certification.
Certainly, California courts have held that even if the trial court’s order on class
certification does not state reasons, or does so without providing detail, it will be deemed
sufficient for review purposes so long as the basis for the court’s ruling may be discerned
from the record. (See e.g., Grogan-Beall, supra, 133 Cal. App. 3d 969, 976 [noting that it
was obvious from the record the certification dispute turned on the issue of commonality
of interest].) However, in Grogan-Beall, the trial court decertified the class without
explanation after a jury trial. (Id. at p. 972.) Accordingly, the Grogan-Beall court was
able to conclude, “Although the trial court did not state its reasons for the decertification
order, it is clear from the record that the dispute over class treatment turned on the issue
of commonality of interest in law and fact. Defendants’ moving papers focused on the
assertion that defendants’ liability to each unnamed plaintiff would have to be
individually litigated in various respects. Defendants relied on Weaver v. Pasadena
Tournament of Roses (1948) 32 Cal. 2d 833 and City of San Jose v. Superior Court (1974)
12 Cal. 3d 447 to argue that the facts developed at the trial, nearly two years after the
original conditional certification, showed that individual issues dominated the case. It is
clear that the trial court’s decertification order was based on insufficient commonality to
justify class treatment.” (Id. at p. 976, italics added.)
10
Plainly, in Grogan-Beall, the record consisted of the trial record where the parties’
arguments and evidence as well as the court’s own ruling and findings during trial gave
the reviewing court sufficient content and context to determine the basis for the court’s
decertification order. There is nothing remotely similar in this case.
In Dailey, supra, 214 Cal. App. 4th 974, in a “brief order, the trial court granted
Sears’s motion to preclude and denied Dailey’s motion to certify the class, concluding
that ‘the individual facts and issues unique to each member of the alleged class and
requiring separate adjudication are more numerous and significant than the common
issues.’ ” (Id. at p. 978.) In Dailey, the trial court “did state its reasons i.e., the
predominance of individual issues and the ability to bring individual claims before the
court.” (Id. at p. 986.) Further, the order cited “appropriate legal principles relevant to
the predominance and superiority analysis.” (Ibid.) Accordingly, the reviewing court
was able to conclude that the “trial court’s order, elucidated by the parties’ briefing and
oral arguments, [was] sufficient to permit meaningful appellate review in [the] case.”
(Id. at p. 987, italics added.)
In Walsh, supra, 148 Cal. App. 4th 1440, the trial court “granted IKON's
decertification motion on the ground of insufficient commonality. The court explained:
‘Common issues of law and fact do not predominate in this matter with respect to the
LDS account manager class, as the circumstances of each class member’s employment
differs significantly from every other member of the class. As a result, individual
hearings on both liability and damages are required for each of the 150 or so class
members, as well as the two class representatives, Walsh and Miller. In these
circumstances, and on the evidence presented in support of and in opposition to the
motion, the Court concludes that common issues of law or fact do not predominate.’ ”
(Id. at pp. 1452-1453.) The Walsh court noted that although “the trial court did not
explain at length why it concluded there was a lack of commonality” (id. at p. 1452,
italics added) “it did refer to different employment circumstances among the subclass
11
members” (ibid.), accordingly, the reviewing court was able to conclude that “the trial
court’s explanation was not so vague that [it was] unable to determine whether
substantial evidence support[ed] the decision.” (Id. at p. 1483.)
The cases to which defendants cite all involved some degree of written or oral
explanation, even if not detailed, but with some way for the reviewing court to deduce
what was the court’s reasoning.
Here, the trial court’s order denying class certification is devoid of any
explanation and nothing in the record of the hearing or anywhere else in the record
illuminates the trial court’s thinking.12 Defendants cite no authority where the record is
so devoid of explanation that it is impossible to comply with the Supreme Court’s
mandate that “we must examine the trial court’s reasons for denying class certification.”
(Linder, supra, 23 Cal.4th at p. 436.) We cannot tell if improper criteria were used or
erroneous legal assumptions were made. Without some indication in the record of the
trial court’s thinking sufficient to give this court insight into how the lower court reached
its decision, any link between the moving papers and the court’s decision would be pure
conjecture on our part. Plainly, our standard of review requires that there be some
enunciation of a reason or basis for denial of class certification from which we can
determine the soundness of the lower court’s decision. To hold otherwise would mean
that in every case where there is a denial of class certification without explanation in the
order or in the record, appellate courts would be placed in the role of trial courts, in
essence, deciding the matter de novo and supplying a rationale not stated by the trial
court; such is not our standard of review in evaluating the correctness of a denial of a
motion for class certification. “The right result is an inadequate substitute for an
12
As noted, the hearing on the motion for class certification was scheduled for
September 10, 2013. The trial judge adopted the one-line tentative decision and refused
to discuss the matter further.
12
incorrect process. Thus the appellate scrutiny should be on the reasons expressed by the
trial court in the context of counsel’s arguments, not merely whether the trial court
reached a result [that] can be justified by implication.” (Clothesrigger, Inc. v. GTE Corp.
(1987) 191 Cal. App. 3d 605, 611-612 (Clothesrigger, Inc.).)
In Clothesrigger, Inc., the trial court, in denying a motion to modify the definition
of a class in a class action lawsuit, did not engage in the analysis that was required by
case law. (Clothesrigger, Inc., supra, 191 Cal.App.3d at p. 612.) Thus, the reviewing
court said, “[o]ur focus on correct process requires us to reverse even though there may
be substantial evidence to support the court’s order.” (Ibid.) We reach a similar
conclusion in this case.
As to defendants’ argument that plaintiff failed to request oral argument to contest
the trial court’s tentative ruling, plainly plaintiff was not contesting the ruling; rather,
plaintiff was requesting an explanation for the court’s ruling more along the lines of a
request for a statement of decision.
As noted ante, Local Rule 8(E) provides that “a party contesting a tentative ruling
must give notice of its intention to appear,” and that the tentative ruling will become the
order “if the Court has not directed oral argument and if the contesting party fails to
timely notice an objection to the other side and the Court.” Plainly, plaintiff’s request for
an explanation of the court’s ruling falls outside this rule.
Regrettably, we must remand this case to the trial court to reconsider the motion,
and in the event that it again denies the motion, articulate its reasoning.
Denial of Plaintiff’s Motion to Amend the Complaint to Add a New Class Representative
Without argument or citation to authority, in his opening brief, plaintiff claimed
that if the court had entertained concerns as to the adequacy of the class representative,
the court should have granted his motion to add a new class representative. Plaintiff
presented the following question for our review: “Did the Superior Court abuse its
discretion by failing to grant Plaintiff[’s] Motion to Amend the Complaint?” Plaintiff
13
presented no argument in favor of his position that the trial court did abuse its discretion.
In his reply brief, plaintiff claims for the first time that the court erred in denying his
motion to amend the complaint to add a new class representative. He presents legal
argument and citation to authority to support this position.
In general, “ ‘[p]oints raised for the first time in a reply brief will ordinarily not be
considered, because such consideration would deprive the respondent of an opportunity
to counter the argument.’ [Citation.] ‘Obvious reasons of fairness militate against
consideration of an issue raised initially in the reply brief of an appellant.’ [Citation.]
‘ “Obvious considerations of fairness in argument demand that the appellant present all of
his points in the opening brief. To withhold a point until the closing brief would deprive
the respondent of his opportunity to answer it or require the effort and delay of an
additional brief by permission. Hence the rule is that points raised in the reply brief for
the first time will not be considered, unless good reason is shown for failure to present
them before.” ’ [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754, 764, as
modified on denial of rehearing (Mar. 5, 1997).)
An appellant has the burden to demonstrate reversible error with reasoned
argument and citation to authority. (Badie v. Bank of America (1998) 67 Cal. App. 4th
779, 784-785 (Badie); California Rules of Court, rule 8.204(a)(1)(B), [each brief must
state each point under a separate heading or subheading summarizing the point, and
support each point by argument and, if possible, by citation of authority].) When an
appellant asserts a point but fails to support it with reasoned argument and citations to
authority, we treat the point as forfeited. (Badie, supra at pp. 784-785.) On appeal we
need address only the points adequately raised by plaintiff in his opening brief on appeal.
(Shaw v. Hughes Aircraft Co. (2000) 83 Cal. App. 4th 1336, 1345 & fn. 6 [appellant
forfeits issue by failing to raise it in the opening brief].) Plaintiff failed to adequately
brief the issue of the denial of his motion to amend the complaint to add a new class
representative; accordingly, we deem the issue forfeited.
14
15
Disposition
The order denying plaintiff’s class certification motion is reversed.
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
WALSH, J.*
13
*
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
16
Trial Court: Santa Clara County Superior Court
Superior Court No. 1-12-CV-227103
Trial Judge: Hon. Kevin E. McKenney
Counsel for Plaintiff/Appellant: Matern Law Group
Miguel Tellez Matthew J. Matern
Rania S. Habib
Counsel for Defendants/Respondents: Miller, Morton, Caillat & Nevis
Rich Voss Trucking, Inc., et al., David I. Kornbluh
Stephanie M. Rocha
Courtney J. Rogerson
Tellez v. Rich Voss Trucking, Inc., et al.
H040375