Lampe v. Queen of the Valley Medical Center ( 2018 )


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  • Filed 1/2/18; pub. order 1/23/18 (see end of opn.)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    MICHAEL LAMPE et al.,
    Plaintiffs and Appellants,
    A146588
    v.
    QUEEN OF THE VALLEY MEDICAL                                (Napa County
    CENTER,                                                    Super. Ct. No. 26-61568)
    Defendant and Respondent.
    I.
    INTRODUCTION
    Appellants Michael Lampe and Karen McNair appeal the trial court’s order
    denying class certification of their wage and hour claims against Queen of the Valley
    Medical Center (QVMC). The trial court concluded that individualized issues
    predominated and the claims could not be proven efficiently as a class. We conclude
    substantial evidence supports the trial court’s findings and it did not abuse its discretion
    in denying class certification. We affirm.
    II.
    FACTUAL AND PROCEDURAL BACKGROUND
    QVMC is a full-service hospital with 94 departments. Appellants Lampe and
    McNair are nurses employed at QVMC. McNair previously worked 8-hour shifts as an
    operating room nurse, and in 2011 she became a relief charge nurse. As a relief charge
    1
    nurse, she determines when to provide meal breaks for the nurses she is supervising.
    Lampe works 12-hour shifts in the mother-child services department.
    A.       Appellants’ Fourth Amended Class Action Complaint and Motion to
    Certify Class
    Beginning in 2011, appellants filed multiple versions of their complaint in this
    action in three different counties. The current complaint is the fourth amended class
    action complaint filed in Napa County, which alleges seven causes of action:
    (1) violation of Business and Professions Code section 17200 et seq.; (2) violation of
    Labor Code sections 206, 218, 226, 510, 1194, and 1198; (3) failure to pay meal break
    penalties under Labor Code sections 226.7 and 512, et seq.; (4) inaccurate wage
    statements under Labor Code section 226; (5) violation of the Private Attorney General
    Act (PAGA) under Labor Code sections 2698–2699; (6) unpaid wages due to illegal
    rounding under Labor Code sections 218, 510, 1194, 1197 and 1198 and; (7) failure to
    provide meal breaks under Labor Code sections 226.7 and 512.
    Appellants filed a motion to certify an “overtime class,” a “meal break class,” and
    a “wage statement” class. The overtime class consisted of two subclasses: (1) employees
    who earned overtime bonuses where QVMC failed to properly calculate their regular rate
    of pay, and (2) alternative work schedule (AWS) employees who were asked to leave
    work between the eighth and twelfth hour of their shift who were not paid overtime
    wages.1 The second class was the meal break class with a subclass of all employees who
    signed meal break waivers. The third class was derivative of the other classes and
    included any QVMC employee who received a pay stub.
    Appellants alleged QVMC has a “company-wide policy of instituting and
    implementing unlawful wage-and-hour policies.” They allege QVMC does not properly
    compensate AWS employees who work short shifts as required by California Code of
    Regulations, title 8, section 11050, subdivision 3(B)(2) (Wage Order No. 5-01(B)(2)).
    They contend that QVMC has no written policy to inform employees that they are
    entitled to overtime if they are flexed off their shift. Appellants argue QVMC failed to
    1
    This is referred to as a “short-shift premium.”
    2
    properly calculate employees’ regular rate of pay. Appellants also assert that QVMC
    required employees to waive one of their two meal periods if they worked a 12-hour shift.
    In support of their motion, appellants submitted deposition transcripts from the
    prior named plaintiffs, Concepcion Vinas and Editha Asuncion, along with deposition
    excerpts from the director of human resources, a payroll coordinator, three QVMC nurses
    with roles as supervisors or managers, and two experts. In his declaration, Lampe stated
    he was not aware he was entitled to a short-shift premium. He also stated he is not
    provided a second meal period when he works over a 12-hour shift.
    QVMC filed an opposition to the class certification motion, arguing that appellants
    had failed to submit substantial evidence to support their theories, and pointing out that
    appellants only submitted their own declarations and offered no testimony from any
    proposed class members. QVMC argued that appellants raised AWS claims even though
    all AWS allegations were stricken from their complaint and they were sanctioned for
    repeatedly raising the claims.
    Included with its opposition, QVMC submitted evidence to contradict Lampe’s
    declaration. Lampe signed an AWS agreement which stated QVMC provides short-shift
    premiums if he worked more than 8 hours but less than a full 12-hour shift. The short-
    shift policy is also contained in the QVMC policy manual. Putative class members
    provided declarations that they were aware of the short-shift policy, including former
    named plaintiffs, Vinas and Asuncion. Fourteen putative class members declared they
    have never been required to leave work after eight hours on an AWS shift, and employees
    would often volunteer to leave early where a short-shift premium is not required.
    Twenty-five QVMC employees testified they were aware they were entitled to a meal
    break if they worked more than five hours and they were provided with their meal breaks.
    They were aware they were entitled to second a meal break if they worked more than
    10 hours and they were offered that meal break. Respondent identified the various
    different and unique ways each department scheduled meal breaks.
    QVMC produced evidence that it has an AWS and written short-shift policy that is
    included with each employee’s AWS agreement. The QVMC Human Resources Policy
    3
    Manual (QVMC HR Manual) policy No. 335.1 states: “Employees will receive a short-
    shift payment if provided more than eight (8) hours, but less than twelve (12) hours of
    work on a regularly scheduled workday. QVMC will pay one and one-half times their
    regular rate for all hours worked in excess of eight hours on that regularly scheduled
    day.” Lampe also signed an AWS agreement for 12-hour shifts.
    QVMC explained it does not have a separate pay code for short-shift premiums; it
    shows up as overtime in the system, or on the pay stub. To determine if an employee was
    being paid a short-shift premium requires a review of the individual edit sheets, if
    available.
    QVMC’s meal break policy is to provide 30 minutes for each day of work over
    5 hours, and a second meal break of at least 30 minutes for each day of work over
    10 hours. The policy is the first meal break should be taken by the end of the fifth hour
    of work. An employee that works more than 10, but less than 12 hours in a workday,
    may waive one of his or her two meal periods. QVMC does not maintain centralized
    electronic records of employees who have signed or revoked meal period waivers. This
    information requires a person-by-person review of employee files.
    For an employee to receive a meal period premium for waiving a meal period, the
    employee must complete a form notifying QVMC. QVMC regularly pays meal period
    premiums when requested.
    Lampe voluntarily signed a meal period waiver. In the waiver, he requested to
    take his first meal break at the end of his sixth hour or later, and to waive the second meal
    break. McNair typically works an 8-hour shift, so she did not sign a meal break waiver.
    McNair testified that when she is the relief charge nurse, if a nurse refuses to take
    a break, she instructs them to put “no break” on their timesheet so they can be paid a
    premium for the missed break.
    After conducting a hearing, the trial court issued an order denying appellants’
    motion for class certification. The trial court cited Duran v. U.S. Bank National Assn.
    (2014) 
    59 Cal. 4th 1
    , 28 (Duran) for the proposition that a class action may be maintained
    if there is “ ‘an ascertainable class and a well-defined community of interest among the
    4
    class members.’ [Citations.] As part of the community of interest requirement, the party
    seeking certification must show that issues of law or fact common to the class
    predominate.” (Ibid.) The ultimate issue for predominance is whether the common
    issues are so numerous and substantial that maintenance of a class action is advantageous
    to the judicial process and to the litigants. (Ibid.)
    The trial court noted appellants sought to certify three classes and three subclasses
    and analyzed each in turn.
    Class 1, the overtime class consisted of nonexempt 12-hour shift employees (from
    November 2007 to certification) and nonexempt non-12-hour shift employees (from
    February 2010 to certification). This could include employees from 94 departments who
    work full-time, part-time, per diem, and work every type of shift (day, night, on-call).
    The potential class included up to 358 different positions, including nurses, therapists,
    secretaries, clerks, gardeners, fitness instructors, social workers, transcriptionists, billers,
    and cooks.
    Within the first overtime subclass were employees who earned nondiscretionary
    bonuses. Within the second subclass were employees who worked AWS who were not
    paid overtime when they were required to leave work between the eighth and twelfth
    hour of their shift.
    Although the first and second subclass are not alleged in the operative complaint,
    the court nevertheless addressed the subclasses on the merits. The court found for the
    first subclass: “There is no evidence in the record that clearly shows what items were or
    were not included in the regular rate calculation, or any details as to why any of the items
    should or should not have been included.” Appellants’ expert does not identify what
    items were wrongly included or excluded. Also, for the first subclass, appellants “failed
    to articulate what group issues predominate. The vague assertion that the regular rate
    was miscalculated without any specific detail as to what pay codes were or were not
    included is insufficient.”
    For the second subclass, appellants contend employees were not paid when they
    flexed off their shift between the eighth and twelfth hour of work. QVMC stated hospital
    5
    policy was to pay the employee using the regular overtime code. The hospital does not
    record whether a short-shift premium is paid because it is recorded as overtime. Because
    this claim required individualized assessment of each employee, the court concluded this
    claim could not be proven efficiently as a class.
    Class 2, the meal break class, consisted of 12-hour shift employees. This class
    included employees in 94 departments working in various types of positions similar to
    Class 1. The third subclass consisted of employees who signed meal waivers for the
    second meal break and worked over a 12-hour shift. The third subclass was not identified
    in appellants’ complaint.
    The trial court found that appellants had not supported their claims regarding meal
    periods with anything other than their own testimony. “Numerous employees have
    declared that they have always been able to take their full 30-minute meal periods, or that
    if they missed a meal period, they may request and have received a meal period
    premium.” Appellant McNair had not signed a meal period waiver because she works an
    8-hour shift, and appellant Lampe signed a waiver to voluntarily waive his meal break.
    The trial court concluded neither appellant is typical of the class they seek to certify.
    The evidence presented disclosed a great variety in how meal periods are
    scheduled in different departments. Appellant McNair was responsible for scheduling
    meal breaks for the nurses in her unit which created a conflict between proposed
    members of the class. The trial court concluded that with the meal period claims, every
    member of the class would be required to litigate numerous and substantial questions
    regarding his or her right to recover, which depended on the department the employee
    worked in, the shift she or he had, whether a meal waiver had been signed, and the
    circumstances leading up to any meal waiver. “The difficulty in managing the individual
    issues renders class certification inappropriate as to the Meal Break Class.”
    Class 3, the wage statement class, consisted of employees who were provided a
    pay stub. “As class certification is not appropriate for the primary Overtime Class and
    Meal Break Class, class certification as to the Wage Statement Class is also
    inappropriate” because it is derivative of the other wage claims.
    6
    III.
    DISCUSSION
    A.      Class Certification Standards
    This state’s public policy supports the use of class actions to enforce California’s
    minimum wage and overtime laws for the benefit of workers. (See Sav-On Drug Stores,
    Inc. v. Superior Court (2004) 
    34 Cal. 4th 319
    , 340 (Sav-On).) However, “because group
    action . . . 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.” ’ ” (Linder v. Thrifty
    Oil Co. (2000) 
    23 Cal. 4th 429
    , 435.)
    Under California law, the party seeking class certification must establish three
    things: “[(1)] the existence of an ascertainable and sufficiently numerous class, [(2)] a
    well-defined community of interest, and [(3)] 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 embodies 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.” 
    (Sav-On, supra
    , 34 Cal.4th at
    p. 326.)
    “ ‘[E]ach member must not be required to individually litigate numerous and
    substantial questions to determine his [or her] right to recover following the class
    judgment . . . .’ ” (Washington Mutual Bank v. Superior Court (2001) 
    24 Cal. 4th 906
    ,
    913.) “ ‘[T]he issues which may be jointly tried, when compared with those requiring
    separate adjudication, must be sufficiently numerous and substantial to make the class
    action advantageous to the judicial process and to the litigants.’ ” (Id. at pp. 913–914.)
    The trial court should not grant class certification if individualized inquiries into
    job duties or other issues would predominate. This is true even if there is evidence of
    common job descriptions, common classification criteria, and common policies and
    procedures. (Mora v. Big Lots Stores, Inc. (2011) 
    194 Cal. App. 4th 496
    , 507–509.)
    7
    The trial court needs “to carefully weigh the respective benefits and burdens of a
    class action and to permit its maintenance only where substantial benefits will be accrued
    by both litigants and the courts alike.” (Reyes v. Board of Supervisors (1987)
    
    196 Cal. App. 3d 1263
    , 1275.) A trial court’s ruling on a motion for class certification is
    reviewed for an abuse of discretion. 
    (Sav-On, supra
    , 34 Cal.4th at p. 326.) Trial courts
    “ ‘are ideally situated to evaluate the efficiencies and practicalities of permitting group
    action’ ” and therefore are “ ‘afforded great discretion’ ” in evaluating the relevant factors
    and in ruling on a class certification motion. (Ibid.)
    B.      Overtime Class
    Appellants sought to certify two overtime subclasses: (1) employees who did not
    have their regular rate of pay correctly calculated, and (2) AWS employees who were not
    paid overtime when they were required to leave work between the eighth and twelfth
    hour of their shift.
    Initially, we note the first and second subclasses are not identified in the operative
    complaint. The fourth amended complaint contains no AWS allegations. The trial court
    ordered the AWS allegations in the second amended complaint stricken. When
    appellants’ counsel again included AWS allegations in the third amended complaint, the
    court sanctioned counsel $10,000 for reasserting the stricken claims. The sanctions were
    the subject of an appeal to this court that was affirmed in an unpublished decision, Vinas
    v. Queen of the Valley Medical Center (Oct. 20, 2016, A143541).
    “A court must examine the allegations of the complaint” to determine “whether
    the legal and factual issues they present are such that their resolution in a single class
    proceeding would be both desirable and feasible.” 
    (Brinker, supra
    , 53 Cal.4th at
    pp. 1021–1022.) QVMC argues that the fourth amended complaint does not contain any
    allegations with respect to AWS employees, or the failure to pay short-shift premiums. It
    points out that simply because short-shift premiums are given the same pay code as
    overtime does not mean they are the same as overtime and the substance of the short-shift
    and regular rate claims are not the same.
    8
    The lack of connection between the complaint and the classes appellants seek to
    certify provides a basis for denial of the certification motion. (See Jones v. Farmers Ins.
    Exchange (2013) 
    221 Cal. App. 4th 986
    , 999 [court can deny class certification or strike
    certification motion where the plaintiffs seek certification that is beyond the scope of the
    pleadings].) The trial court recognized this deficiency but addressed the subclasses on
    the merits. We will, therefore, also address the claims on the merits.
    1.    Regular Rate Subclass
    Appellants argue QVMC failed to include all required amounts in the regular rate
    of pay before calculating overtime.
    “Under California law, an employee must be paid overtime compensation for work
    performed in excess of eight hours in one day, calculated at one and one-half times the
    regular rate of pay. (Lab. Code, § 510, subd. (a).)” (Huntington Memorial Hospital
    v. Superior Court (2005) 
    131 Cal. App. 4th 893
    , 899.) An employee’s overtime
    compensation is based upon his or her “ ‘regular rate’ ” of pay. (Id. at p. 902.)
    To support their allegations, appellants submitted an expert declaration from
    Dr. Richard Drogin, Ph.D., a statistician. He evaluated Lampe’s pay records over
    195 pay periods, and McNair’s over 165 pay periods. He determined that the regular rate
    was not properly calculated for 130 out of 360 pay periods resulting in underpayment of
    $10,767 to Lampe, and $7,156 to McNair. Although Dr. Drogin conducted an analysis of
    75 employees regarding meal breaks, he provided no analysis on the regular rate payment
    for any employees except Lampe and McNair.
    QVMC argues appellants failed to adequately identify the legal claim they seek to
    pursue on behalf of this class. Appellants only list the various pay categories and claim
    some of the bonus or incentive categories were not included in the regular rate
    calculation.
    For the regular rate subclass, the trial court found there was “no evidence in the
    record that clearly shows what items were or were not included in the regular rate
    calculation, or any details as to why any of the items should or should not be included.”
    Dr. Drogin did not identify what items were wrongly included or excluded. This expert
    9
    listed bonus categories, but does not link them to appellants or other putative class
    members. The trial court found that appellants had not shown if they or other members
    of the class received or did not receive any of the listed pay codes.
    Additionally, the trial court found appellants “failed to articulate what group issues
    predominate. The vague assertion that the regular rate was miscalculated without any
    specific detail as to what pay codes were or were not included is insufficient.”
    Appellants simply provided pages of what appear to be QVMC pay code sheets effective
    in 2007 and 2009. Respondent argues four of the bonus categories appellants identified
    in their certification motion are listed on these pay code sheets as included in the regular
    rate calculation.
    Based on appellants’ generalized allegations, the trial court could not properly
    determine if individual or common issues predominate. (See 
    Brinker, supra
    , 53 Cal.4th
    at p. 1025.) Without identifying which elements of compensation were at issue, the court
    could not determine if there was an ascertainable and numerous class with a defined
    community of interest. (Id. at p. 1021.)2
    We agree and conclude the trial court properly denied certification of the regular
    rate subclass.
    2
    Appellants rely on a case seeking conditional certification under the Fair Labor
    Standards Act (FLSA) from the Western District of Missouri, Speer v. Cerner
    Corporation (W.D. Mo. Mar. 30, 2016, No. 14-0204-CV-W-FJG) 
    2016 WL 1267809
    , to
    argue they do not have to demonstrate if certain categories of pay are excluded from the
    regular rate, this can be determined at the summary judgment stage. The standard for
    conditional certification under the FLSA is evidence of a “common policy or plan” (Id.,
    at p. *7) which is different than the community of interest standard for class certification
    under California law.
    10
    2.     Short-Shift Premium Subclass
    Appellants argue QVMC did not provide overtime pay to employees that it “flexed
    off” between the eighth and twelfth hour of their AWS shifts. They argue employees
    were not paid if they volunteered to leave early, and employees were not informed that if
    they did not volunteer they would be paid a short-shift premium.
    Under Wage Order No. 5-2001, a health care industry employer and an employee
    may adopt an alternate workweek schedule allowing the employee to work days
    exceeding 10 hours, but less than 12 hours. (Cal. Code Regs., tit. 8, § 11050.) If the
    employer requests the employee work less than their regularly scheduled shift, the
    employer must pay a rate of one and one-half times the employee’s regular rate of pay for
    all hours worked in excess of eight hours. (Id., subd. (3)(B)(2).)
    QVMC HR Manual policy No. 335.1 states: “Employees will receive a short-shift
    payment if provided more than eight (8) hours, but less than twelve (12) hours of work on
    a regularly scheduled workday. QVMC will pay one and one-half times their regular rate
    for all hours worked in excess of eight hours on that regularly scheduled day.” The short-
    shift premium is not paid “if the full shift is not worked due to the employee’s actions.”
    As an example, the policy lists an employee’s request to go home early. Lampe’s AWS
    agreement states: “Employees will receive a short-shift payment if provided more than
    eight (8) hours, but less than twelve (12) hours of work on a regularly scheduled
    workday. Queen of the Valley Hospital will pay one and one-half times their regular rate
    for all hours worked in excess of eight hours on that regularly scheduled day.”
    Appellants submitted an expert declaration from Sean Berger, a consultant on data
    collection and analysis. Berger analyzed data provided to him by appellants’ counsel to
    determine how often Lampe and other employees worked between 8.25 and 11.75 hours.
    He analyzed 981 workdays between 2007 to 2014 for Lampe and found he worked
    between 8.25 and 11.75 hours on 20 days (2.04 percent of the time). He evaluated a
    sample class of 75 employees and found 28.03 percent of the time they worked between
    8.25 and 11.75 hours.
    11
    As noted earlier, QVMC has a policy to pay employees a short-shift premium if
    they worked more than eight hours, but less than twelve hours. Appellants presented no
    evidence QVMC discouraged employees from seeking a short-shift premium. QVMC,
    however, presented evidence that the former named plaintiffs, Vinas and Asuncion,
    provided testimony that they were aware of the short-shift policy and were paid short-
    shift premiums. Respondent also submitted the written policies provided to employees.
    QVMC’s payroll system did not have pay code for short-shift premiums but used the
    overtime pay code.
    In support of their claims, appellants rely on an unpublished federal district court
    decision, Escano v. Kindred Healthcare Operating Co., Inc. (C.D. Cal. Mar. 5, 2013,
    No. CV 09-04778 DDP (CTX)) 
    2013 WL 816146
    (Escano). Escano is not binding on
    this court and is readily distinguishable. The Escano plaintiffs brought wage and hour
    claims against hospitals owned by Kindred Healthcare Operating Group, Inc. (Kindred).
    (Id. at p. *1.) The plaintiffs raised the same AWS claim raised here: that employees who
    left work between the eighth and twelfth hour of their shift were not paid their short-shift
    premium. (Id. at p. *2.) The plaintiffs presented evidence that Kindred had a policy of
    not paying employees short-shift premiums and none of the putative class members were
    aware of the law regarding short-shift premiums. (Id. at p. *3.) The chief financial
    officer for Kindred was not aware of the law. (Ibid.) Kindred employees’ AWS
    agreements made no mention of the short-shift premium. (Id. at p. *4.) Kindred had no
    code in their payroll system for short-shift premiums. (Ibid.)
    Based on Kindred’s policy of requiring employees to leave early when patient
    census is low and the fact employees were not aware they were entitled to a short-shift
    premium, the plaintiffs were allowed to use classwide proof to show short-shift premiums
    were not paid. 
    (Escano, supra
    , 
    2013 WL 816146
    at p. *5.)
    This case has two notable differences: first, QVMC has a written policy requiring
    the payment of short-shift premiums to AWS employees and; second, this requirement
    was included in each AWS agreement. The employees here, including Lampe, were
    aware of the short-shift premium and the prior named plaintiffs, Vinas and Ascusion, had
    12
    utilized it. In 
    Escano, supra
    , 
    2013 WL 816146
    , the lack of a policy and the fact the
    information was not communicated to employees allowed for class issues to predominate;
    the same is not true here. In order to evaluate whether an individual employee was
    denied a short-shift premium is an individualized determination because it is dependent
    upon the employee’s reason for leaving early from a particular shift. A short-shift
    premium is not paid unless the employer ends the shift early; if an employee leaves
    voluntarily, the premium is not owed.
    Appellants also rely on language in Escano that an employee who is unaware of
    the short-shift policy could not elect to leave voluntarily and forgo their premium
    payment. 
    (Escano, supra
    , 
    2013 WL 816146
    .) But, in Escano, much of the issue rested
    on involuntariness; here the employees were aware of the policy and many chose to leave
    early (without payment) when they had the opportunity.3
    Appellants failed to present substantial evidence that employees, as a class, were
    required to leave early by QVMC. An individualized assessment is necessary to
    determine for each shift whether an employee left early because QVMC requested it or
    because the employee volunteered. This question cannot be determined from pay records
    or from expert data analysis. Pay records utilized the same code for overtime as short-
    shift premiums and time records only show when an employee left early, but do not
    provide the reason. Appellants’ expert was only able to determine that 28.03 percent of
    the time putative class members worked a short shift, but this does not eliminate the need
    for a person by person analysis to determine the reason. (See 
    Duran, supra
    , 59 Cal.4th at
    p. 31 [“There must be some glue that binds class members together apart from statistical
    evidence.”].)
    3
    Nurse Sherry Rubio declared that she had never been required to leave her 12-
    hour shift early and when she left early it was voluntarily, at her own request. The shift
    lead for the intensive care unit department, who had worked at QVMC since 1979,
    similarly testified she had never been asked to leave early and when she did leave early it
    was because she had volunteered. A senior X-ray technician also declared that she had
    never been asked to leave early and always did so voluntarily when she requested
    permission to leave early.
    13
    Finally, appellants have not provided any evidence that QVMC dissuaded
    employees from requesting short-shift premiums. Instead, employee declarations showed
    they were aware of the policy and utilized it.
    The trial court did not abuse its discretion in finding the claim required
    individualized assessment and could not be proven efficiently as a class.
    C.     Meal Break Class
    Appellants raise two arguments on appeal regarding meal breaks: (1) QVMC
    failed to provide a second meal break when employees worked 12 hours or more; and
    (2) QVMC failed to provide a meal break within the first five hours of an employee’s
    shift.
    An employer generally must provide a 30-minute meal period to all nonexempt
    employees who work more than five hours, and a second 30-minute meal period to
    employees who work more than 10 hours. (Lab. Code, § 512, subd. (a); Cal. Code Regs.,
    tit. 8, § 11050, subd. 11.) “The employer satisfies this obligation if it relieves its
    employees of all duty, relinquishes control over their activities and permits them a
    reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or
    discourage them from doing so.” 
    (Brinker, supra
    , 53 Cal.4th at p. 1040.)
    1.     Employee Meal Break Waivers
    Appellants argue QVMC failed to provide a second meal break to employees who
    worked a 12-hour shift or longer. Appellants’ theory before the trial court was that
    QVMC forced employees to waive their second meal break as a condition of
    employment.
    Appellants’ evidence consisted of statistical analysis: Berger concluded the
    sample class worked more than 12.25 hours 52.7 percent of the time. The data showed
    there were no meal punches for a second meal period when they worked longer than
    12.25 hours. Berger’s analysis showed that Lampe worked more than 12.5 hours on
    65 days (6.6 percent of the time) and he did not punch out for second meal on those days.
    14
    QVMC presented declarations from employees who stated they took a second
    meal break when they worked over 12 hours.4 Appellants did not submit any employee
    declarations about why they failed to take a second meal break. QVMC submitted
    deposition transcript excerpts from putative class members who stated that they were
    offered the second meal period but waived it so they could go home sooner.
    Wage Order No. 5-2001, subdivision 11(D) allows for voluntary written
    agreements to waive meal periods. (Cal. Code Regs., tit. 8, § 11050, subd. 11(D).)
    Respondent provided evidence that Lampe voluntarily signed a meal break waiver and
    other nurses also provided testimony of voluntarily waiving their meal breaks.
    Respondent presented declarations from 21 employees that they signed the waivers
    voluntarily.
    Additionally, QVMC’s evidence indicated the issue of employee waivers could
    not be addressed on a classwide basis. Each employee’s written waiver form was
    contained in the employee’s individual personnel file. In addition, the declarations and
    deposition transcript excerpts demonstrated the employees’ ability to take meal breaks
    varied from department to department. The question of whether a missed meal break was
    due to the employer’s failure to allow it or from the employee’s voluntary choice not to
    take it requires an individualized inquiry. The evidence demonstrated QVMC’s written
    policy provided a second meal period but allowed employees to waive it. The expert’s
    analysis does not change the nature of the claims.
    Appellants’ argument seems to be that employees believed their waiver was
    required. An employer’s dissuasion of employees from taking meal or rest breaks may
    result in the employer’s liability, even if the employer has a written policy that complies
    4
    A dietary aide declared if her shift lasts longer than 12 hours, she takes a 30-
    minute meal period regardless of whether or not she signed a meal waiver and QVMC
    has always provided her a second meal break when she worked more than 12 hours. The
    shift lead for the hospital’s intensive care unit department and p.m. lead registered nurse
    for the surgical services department similarly declared that if they work longer than
    12 hours, they take a second 30-minute meal break and they have always been provided
    with the second break.
    15
    with the law. (See 
    Brinker, supra
    , 53 Cal.4th at p. 1040.) By extension, appellants
    argue, an employer’s dissuasion of employees from applying for premium pay, or its
    failure to advise employees of their entitlement to premium pay, may result in employer
    liability. Appellants, however, have not presented evidence that employees were
    dissuaded from applying for compensation for missed meal breaks.
    Division Two of this court held in Sotelo v. MediaNews Group, Inc. (2012)
    
    207 Cal. App. 4th 639
    , 654 (Sotelo): “A class . . . may establish liability by proving a
    uniform policy or practice by the employer that has the effect on the group of making it
    likely that group members will work overtime hours without overtime pay, or to miss
    rest/meal breaks.” In examining whether newspaper employees shared sufficient
    common evidence to show they were denied meal and rest breaks, the trial court found
    the evidence indicated “ ‘a wide variation among carriers in the number of hours they
    worked each day . . . and that their ability to take breaks turned on factors that varied
    substantially across the proposed class . . . .’ ” (Id. at p. 653.)
    The plaintiffs in Sotelo relied on Jaimez v. Daiohs USA, Inc. (2010)
    
    181 Cal. App. 4th 1286
    (Jaimez), where the court found that employees had been
    purposefully denied overtime and meal and rest breaks. Jaimez concluded the claims
    were amenable to class treatment due to evidence that the employer maintained “uniform
    policy and practice” affecting all putative class members. (Ibid.) The Sotelo court
    distinguished Jaimez: “ In Jaimez, there was an allegation that defendant ‘had a policy of
    failing to permit or authorize [route sales representatives] to take rest breaks . . . .’
    
    (Jaimez, supra
    , 181 Cal.App.4th at p. 1304.) Moreover, Jaimez presented evidence of a
    common factual issue—that ‘[t]he delivery schedules made it extremely difficult for
    [route sales representatives] to timely complete the deliveries and take all required rest
    breaks.’ (Ibid.) As with the overtime claims, appellants failed to allege a uniform policy
    on the part of respondents to deny putative members the ability to take rest breaks.”
    
    (Sotelo, supra
    , 207 Cal.App.4th at pp. 654–655.)
    Sotelo concluded the plaintiffs had not alleged that the newspaper had a uniform
    practices or policies that denied employees overtime or meal breaks. 
    (Sotelo, supra
    ,
    16
    207 Cal.App.4th at p. 655.) And the plaintiffs failed to show that such a policy could be
    established by the evidence. (Ibid.)
    Similarly, here, appellants are arguing that QVMC had a policy requiring
    employees to waive meal breaks, but they have no evidence to support this contention.
    If QVMC, in fact, had such a policy that applied to all employees, appellants could
    demonstrate the claim was proper for class certification under 
    Jaimez, supra
    ,
    
    181 Cal. App. 4th 1286
    . Here, however, QVMC’s policy provided for meal breaks as
    required by law, but allowed employees to waive the breaks. In Sotelo, the court found
    no common policy applied to all employees that violated state law. 
    (Sotelo, supra
    ,
    207 Cal.App.4th at p. 655.) “This is very different from the circumstances here where
    the plaintiffs alleged, and produced specific evidence, showing the existence of a
    common practice (the failure to authorize and provide for meal and rest breaks) that
    violated state law.” (Bradley v. Networkers Internat., LLC (2012) 
    211 Cal. App. 4th 1129
    ,
    1153.)5
    The trial court found appellants had not supported their claims regarding meal
    periods with anything other than their own testimony. “Numerous employees have
    5
    At oral argument appellants relied on a recent decision, also cited in their reply
    brief: Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926 (Lubin). Lubin involved
    class certification of off-duty meal breaks and rest breaks for security officers. The trial
    court originally granted class certification but then decertified the class after the Supreme
    Court’s decision in WalMart Stores, Inc. v. Dukes (2011) 
    564 U.S. 388
    . As relevant here,
    the Lubin court concluded the plaintiffs had demonstrated The Wackenhut Corp. had a
    common policy of not providing meal or rest breaks. (Lubin, at p. 938.) The Wackenhut
    Corp. also had a “uniform practice” of allowing clients to decide whether to provide on-
    duty meal breaks. (Id. at p. 943.) The court found the trial court erred by not focusing on
    the plaintiffs’ theory of liability in their complaint and instead focused on whether
    individualized inquiries were required to determine if, in practice, meal breaks were
    provided. (Id. at p. 941.)
    The trial court here properly focused on the theories set forth in appellants’
    complaint. Appellants could not demonstrate QVMC had uniform policies that denied
    employees meal or rest breaks, or that QVMC “forced” appellants to waive their meal
    breaks as a condition of employment. Unlike Lubin, appellants cannot point to common
    policies or uniform practices to support their allegations.
    17
    declared that they have always been able to take their full 30-minute meal periods, or that
    if they missed a meal period, they may request and have received a meal period
    premium.” Appellant McNair had not signed a meal period waiver because she works an
    8-hour shift and appellant Lampe signed a waiver to voluntarily waive his meal break.
    Neither plaintiff is typical of the class they seek to certify. There is no community of
    interest when class representatives’ claims are not typical of the class. 
    (Sav-On, supra
    ,
    34 Cal.4th at p. 326.)
    The trial court’s findings that individual questions of proof predominated is
    supported by the fact that the reasons any particular employee might not take a meal
    period are more likely to predominate if the employer need only offer meal periods, but
    need not ensure employees take their meals. (See 
    Brinker, supra
    , 53 Cal.4th at pp. 1040–
    1041 [California requires only that an employer make a meal period available, not that
    employees must eat their meals].)
    Additionally, the court noted McNair testified she was responsible for scheduling
    meal breaks for nurses in her unit which caused a conflict of interest with the members of
    the class. A “finding of adequate representation will not be appropriate if the proposed
    class representative’s interests are antagonistic to the remainder of the class.” (J.P.
    Morgan & Co., Inc. v. Superior Court (2003) 
    113 Cal. App. 4th 195
    , 212.) “ ‘ “It is
    axiomatic that a putative representative cannot adequately protect the class if his interests
    are antagonistic to or in conflict with the objectives of those he purports to represent.” ’ ”
    (Seastrom v. Neways, Inc. (2007) 
    149 Cal. App. 4th 1496
    , 1502.)
    2.     Meal Breaks After Five Hours
    Dr. Drogin analyzed time records for 75 employees who worked 12-hour shifts
    from 2007 to 2014 and concluded only 11.1 percent had meal breaks of 30 minutes
    within the first 5 hours of their shifts. Appellants did not submit any declarations as to
    why employees failed to take a meal break after five hours. They also failed to submit
    any declarations from employees who claimed they were denied meal breaks or not
    provided them, if they desired them, after the fifth hour of work. The declaration they
    did submit from Lampe stated that he signed a meal break waiver that provided he was
    18
    entitled to two 30-minute meal breaks. It states: “QVMC has offered to schedule my
    first meal period to begin by the end of my fifth hour of work, however, this would cause
    the second portion of my workday to be longer than the first portion; [¶] [ ] I hereby
    request that I be allowed, for my own convenience, to voluntarily waive one of my two
    (2) meal periods. I further request that I be allowed to begin the other meal period at or
    near the middle of my 12-hour shift, up to but not later than the end of my tenth hour of
    work.” The waiver stated Lampe could revoke the waiver at any time by providing one
    day’s advance notice in writing.
    Numerous other QVMC employees provided declarations that they were provided
    a break within five hours of starting their shift. A missed meal break does not constitute
    a violation if the employee waived the meal break, or otherwise voluntarily shortened or
    postponed it. (See 
    Brinker, supra
    , 53 Cal.4th at pp. 1040–1041.)
    Appellants’ expert analysis showed that only 11.1 percent of employees took meal
    breaks within the first five hours of their shift. Appellants argue this is evidence that
    QVMC uniformly failed to provide timely meal breaks. But this could easily be
    explained by waivers like Lampe’s that requested the meal break mid-shift or later.
    “ ‘Critically, if the parties’ evidence is conflicting on the issue of whether common or
    individual questions predominate (as it often is . . . ), the trial court is permitted to credit
    one party’s evidence over the other’s in determining whether the requirements for class
    certification have been met . . . .’ ” (Mies v. Sephora U.S.A., Inc. (2015) 
    234 Cal. App. 4th 967
    , 981.)
    To determine why each employee did not take their first meal break after five
    hours would require an individualized determination and review of individual employee
    files and pay stubs. (See Koval v. Pacific Bell Telephone Co. (2014) 
    232 Cal. App. 4th 1050
    , 1062–1063 [no common method to prove classwide liability because of the
    variation on how policies were communicated to each individual plaintiff].)
    The trial court correctly concluded that common issues did not predominate and
    given the individualized inquiries required and the potential conflict between the named
    plaintiffs and the class, there were not substantial benefits from proceeding as a class.
    19
    D.     Wage Statement Class
    In their certification motion, appellants seek to certify a class of every nonexempt
    hourly employee who received a pay stub since November 2010. They describe this class
    as “purely derivative . . . of the wage claims.” The trial court found that because class
    certification was not appropriate for the overtime or meal break classes, there was no
    basis to certify the wage statement class which was derivative of the other wage claims.
    We agree. (See White v. Starbucks Corp. (N.D. Cal. 2007) 
    497 F. Supp. 2d 1080
    , 1089–
    1090 [summary judgment of the plaintiff’s claims for inaccurate wage statements was
    proper on the ground that these claims are derivative of the plaintiff’s overtime and break
    claims].)
    IV.
    DISPOSITION
    The judgment is affirmed. Respondent shall recover its costs on appeal.
    20
    _________________________
    RUVOLO, P. J.
    We concur:
    _________________________
    KENNEDY, J.*
    _________________________
    RIVERA, J.
    *Judge of the Superior Court of California, County of Contra Costa, assigned by
    the Chief Justice pursuant to article VI, section 6 of the California Constitution.
    21
    CALIFORNIA COURT OF APPEAL
    FIRST APPELLATE DISTRICT
    DIVISION 4
    MICHAEL LAMPE et al.,
    Plaintiffs and Appellants,
    v.
    QUEEN OF THE VALLEY MEDICAL CENTER,
    Defendant and Respondent.
    A146588
    Napa County No. 26-61568
    BY THE COURT:
    The written opinion which was filed on January 2, 2018 has now been certified for
    publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered
    published in the official reports.
    Date: __1/23/18__                                        _________Ruvolo, P.J._ ______
    1
    Trial Court:                           Napa County Superior Court
    Trial Judge:                           Hon. Diane M. Price
    Counsel for Appellants:                Law Office of Joseph Antonelli, Joseph
    Antonelli, Janelle C. Carney
    Law Office of Kevin T. Barnes, Kevin T. Barnes, Gregg Lander
    Counsel for Respondent:                Sheppard, Mullin, Richter & Hampton, Derek
    R. Havel, Daniel J. McQueen, Matthew A.
    Tobias
    2