Modaraei v. Action Property Management, Inc. ( 2019 )

Filed 9/30/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RON MODARAEI, B290247
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC495179)
v.
ACTION PROPERTY
MANAGEMENT, INC.,
Defendant and
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Ann I. Jones, Judge. Affirmed.
Parris Law Firm, R. Rex Parris, Kitty Szeto, John M.
Bickford, and Ryan A. Crist; Lawyers for Justice, Edwin
Aiwazian, and D. Elliot Gonzalez for Plaintiff and Appellant.
Jackson Lewis, Scott C. Lacunza, and Kyle C. Worrell for
Defendant and Respondent.
____________________________
Ron Modaraei appeals from an order denying a motion for
class certification in an employee misclassification case he
brought against his former employer, Action Property
Management (APM). He also appeals from an order terminating
depositions of class members who signed declarations that were
filed as part of APM’s evidence opposing class certification.
Finding no abuse of discretion, we affirm the trial court’s orders.
BACKGROUND
APM provides property management services for common
interest developments. The property (more specifically, the non-
profit corporation that is the homeowners or other common
interest association) contracts with APM to provide “staffing and
resources to oversee the operations of the corporation. That
generally means that there is some type of a manager assigned to
that corporation, and that manager essentially functions as a
CEO of the corporation and works with the board of directors to
carry out those responsibilities.”
The managers APM assigns to properties are “community
managers,” “portfolio managers,” “general managers,” and “on-
site managers.” While the term “community manager” could
refer to any of the positions, the company uses “community
manager” and “portfolio manager” interchangeably; likewise, the
terms “general manager” and “on-site manager” are
interchangeable. 1 As the parties do, we refer to the two
1 APM’s Chief Executive Officer, Matthew Holbrook,
explained that “[p]eople in the industry will refer to anybody that
is an association manager potentially as a community manager.”
APM calls managers whose assigned properties are managed
from an APM corporate office “community managers” or “portfolio
managers.” “On-site managers” and “general managers” are
2
categories as community managers (CMs) and general managers
(GMs).
APM hired Modaraei as a CM in its Rancho Cucamonga
office in February 2007. Modaraei eventually became a GM at a
high-rise building in West Hollywood, and later at a mid-rise
building in downtown Los Angeles. Modaraei’s employment was
terminated in September 2010.
Modaraei filed this proposed class action against APM on
November 2, 2012, alleging 10 causes of action stemming from
APM’s alleged misclassification of CMs and GMs as exempt
employees rather than non-exempt employees under Industrial
Welfare Commission wage order No. 5-2001. (Cal. Code Regs.,
tit. 8, § 11050.) 2 On October 10, 2014, Modaraei moved the trial
court for an order certifying two subclasses of APM employees
and former employees. The first proposed subclass was “[a]ll
current and former salaried [CMs] employed by [APM] within the
State of California at any time during the period from November
2, 2008 until the present.” (Fn. omitted.) The second proposed
subclass was “On-site Managers/General Managers.”
those whose offices are located at the assigned property. CMs
typically (but not always) manage multiple properties at the
same time. GMs manage a single property.
2 Modaraei’s complaint alleged causes of action for unpaid
overtime, unpaid meal period premiums, unpaid rest period
premiums, unpaid minimum wages, final wages not timely paid,
wages not timely paid during employment, non-compliant wage
statements, failure to keep requisite payroll records,
unreimbursed business expenses, and violations of Business and
Professions Code section 17200.
3
APM filed its opposition to Modaraei’s motion for class
certification on September 1, 2017. 3 Along with its opposition, it
served declarations of more than 30 putative class members. At
Modaraei’s request, the trial court continued the class
certification hearing and ordered each of APM’s putative class
member declarants to appear for deposition. The depositions
were not to exceed 2.5 hours each. The trial court also ordered
that “the subject matter scope of each deposition is limited to the
facts and circumstances related to the preparation, generation
and obtaining of the Declaration and the facts and information
contained in the Declaration.”
On October 26, 2017, APM filed an ex parte application for
a protective order terminating further depositions of its putative
class member declarants. The next day, the trial court entered
an order granting APM’s ex parte application.
Modaraei filed his reply in support of class certification on
November 17, 2017. The trial court heard and denied Modaraei’s
motion for class certification on May 11, 2018. 4
In its order, the trial court stated that Modaraei had “not
shown predominance of common questions and
superiority/manageability.” The trial court compared and
contrasted evidence Modaraei presented with evidence APM
The record does not account for the delay between
3
Modaraei’s October 2014 motion for class certification and APM’s
September 2017 opposition.
4 In December 2017, APM filed a motion to deny class
certification to be heard concurrently with Modaraei’s motion.
The trial court denied APM’s motion as moot “[i]n light of the
concurrent ruling denying [Modaraei’s] motion for class
certification . . . .”
4
presented and credited APM’s evidence over Modaraei’s to
conclude that “the trier of fact would have to make individualized
inquiries on a property-by-property basis and manager-by-
manager basis to determine how CMs and GMs actually spent
their time.” According to the trial court, individual questions
would predominate. The trial court also concluded that
Modaraei’s trial plan was inadequate because it failed to account
for variations in tasks performed and the time CMs and GMs
spent on those tasks (identified in the trial court’s predominance
analysis) and because Modaraei’s expert witness’s “promise to
conduct a statistical analysis in the future is not a trial plan.” 5
Modaraei filed a timely notice of appeal. 6
5 Along with its order denying class certification, the trial
court made a number of evidentiary rulings based on objections
filed by both parties. Neither party has appealed the trial court’s
evidentiary rulings. “As a result, any issues concerning the
correctness of the trial court’s evidentiary rulings have been
waived. [Citations.] We therefore consider all such evidence to
have been properly excluded.” (Lopez v. Baca (2002) 98
Cal.App.4th 1008, 1014-1015.) We have not incorporated
excluded evidence in the background or considered it in our
review of the trial court’s order denying class certification.
6 The appellant’s appendix is both technically and
substantively deficient. “The California Rules of Court require
an appellant who elects to proceed by appendix to include, among
other things, any document filed in the trial court which ‘is
necessary for proper consideration of the issues, including . . . any
item that the appellant should reasonably assume the respondent
will rely on.’ ” (Jade Fashion & Co., Inc. v. Harkham Industries,
Inc. (2014) 229 Cal.App.4th 635, 643 (Jade Fashion); Cal. Rules
of Court, rule 8.124(b).) “Where the appellant fails to provide an
adequate record of the challenged proceedings, we must presume
5
DISCUSSION
Modaraei challenges the trial court’s order denying his
motion for class certification. Modaraei also appeals from the
trial court’s October 27, 2017 order terminating the depositions of
APM’s putative class member declarants.
I. Denial of Class Certification
Standard of Review
“ ‘We review the trial court’s ruling [denying class
certification] for abuse of discretion and generally will not disturb
it, “ ‘unless (1) it is unsupported by substantial evidence, (2) it
rests on improper criteria, or (3) it rests on erroneous legal
assumptions.’ ” ’ [Citation.] If the court’s ‘reasons for granting or
denying certification . . . are erroneous, we must reverse, whether
or not other reasons [could have been] relied upon [to] support[]
that the appealed judgment or order is correct, and on that basis,
affirm.” (Jade Fashion, at p. 644.)
This recitation is not exhaustive by any measure, but the
deficiencies in the appellant’s appendix include missing required
documents, such as the register of actions (Cal. Rules of Court,
rules 8.124(b)(1)(A) and 8.122(b)(1)(F)), and missing documents
that Modaraei should have reasonably assumed APM would rely
on (Cal. Rules of Court, rule 8.124(b)(1)(B)), such as APM’s
memorandum of points and authorities it filed in opposition to
Modaraei’s motion for class certification and the objections APM
filed (and the trial court ruled on) to Modaraei’s class certification
evidence. Some documents included in the appellant’s appendix
were incomplete, such as a declaration of APM’s counsel
attaching certain deposition testimony and other exhibits, and
APM’s compendia of evidence filed to support its opposition to
class certification. (See Cal. Rules of Court, rule 8.124(g).)
But because APM filed a respondent’s appendix that
included a record sufficient for us to review the trial court’s order,
we do so. (See Jade Fashion, supra, 229 Cal.App.4th at p. 644.)
6
the ruling.’ [Citations.] In this respect, ‘ “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.] We may only consider the reasons
stated by the trial court and must ignore any unexpressed reason
that might support the ruling.” ’ ” (McCleery v. Allstate Ins. Co.
(2019) 37 Cal.App.5th 434, 450 (McCleery); see Duran v. U.S.
Bank National Assn. (2014) 59 Cal.4th 1, 25 (Duran).) “Because
trial courts ‘ “are ideally situated to evaluate the efficiencies and
practicalities of permitting group action,” ’ they are ‘ “afforded
great discretion” ’ in evaluating the relevant factors and ruling on
a class certification motion.” (McCleery, at p. 450.)
Class Certification
“[W]hen the question is one of common or general interest,
of many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court, one or more may
sue or defend for the benefit of all.” (Code Civ. Proc., § 382.)
“The party advocating class treatment must demonstrate the
existence of an ascertainable and sufficiently numerous class, a
well-defined community of interest, and substantial benefits from
certification that render proceeding as a class superior to the
alternatives.” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1021; Noel v. Thrifty Payless, Inc. (2019) 7
Cal.5th 955, 968.) “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
7
represent the class.’ ” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th
429, 435.)
Here, the inquiries at issue are predominance and
superiority.
Predominance of Common Questions
1. Improper Criteria
Modaraei contends that the trial court abused its discretion
by basing its predominance analysis on improper criteria.
Modaraei argues that he based his theory of recovery on a
“common core of non-exempt tasks,” and that the trial court
improperly “bas[ed] its denial in variations that would have no
effect on the core tasks.”
Modaraei’s argument is based on our opinion in Jaimez v.
Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286 (Jaimez). In
Jaimez, we concluded that the “[p]laintiff’s ‘theory of recovery’
involve[d] uniform policies applicable to [a group of employees]
that” were amenable to class treatment. (Id. at p. 1299.) That
the defendant might have “identif[ied] individual effects of
policies and practices that may well call for individual damages
determinations . . .” did not affect the amenability of the
plaintiff’s theory of recovery to class treatment. (Id. at p. 1300.)
“In Jaimez, the court explained that what the trial court must do
is examine all the evidence together in light of the plaintiffs’
theory of recovery. If the plaintiffs choose to pursue their case on
a theory that the defendants’ policies and procedures adversely
affected the class as a whole, regardless that some class members
may not have been harmed, then the evidence presented must be
evaluated on that basis.” (Department of Fish & Game v.
Superior Court (2011) 197 Cal.App.4th 1323, 1349.)
8
Modaraei contends that his theory of recovery is similar to
the theory of recovery in Jaimez because GMs and CMs have the
same “duties.” Modaraei also repeatedly turns to Sav-On Drug
Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 330-331
(Sav-On) to persuade, as it tried to persuade the trial court, that
there is a “reasonably definite and finite list” of tasks that GMs
and CMs perform, and that all the trial court must do is
determine whether each of those tasks is exempt or non-exempt.
In Sav-On, however, “the tasks discussed in both defendant’s and
plaintiffs’ submissions comprise[d] a reasonably definite and
finite list.” (Ibid.) The same was true in Jaimez; the list of tasks
class members performed was undisputed, and was a reasonably
definite and finite list of tasks. (See Jaimez, supra, 181
Cal.App.4th at p. 1302.) That is not the case here; the parties
disagree about the tasks GMs and CMs perform. The trial court
noted that distinction in its order, and we agree with the trial
court’s ultimate assessment that “[u]nlike in Sav-on, where the
predominant issue was task classification, the predominant issue
here is how CMs and GMs actually spent their time.” (See
Duran, supra, 59 Cal.4th at p. 26; also (Cal. Code Regs., tit. 8,
§ 11050(1)(B)(1)(e) [“[t]he work actually performed by the
employee during the course of the workweek must, first and
foremost, be examined”].) Modaraei’s theory of recovery, then,
depends on Modaraei first establishing the “reasonably definite
and finite list of tasks” APM’s GMs and CMs perform.
Modaraei’s burden on class certification is not to do so, but to
produce evidence that he can do so at trial. The trial court was
not convinced he could.
The trial court’s order lays out in detail the differences
between the parties’ evidence: “On the one hand, although
9
[Modaraei’s] declarants acknowledge differences in the properties
they managed, they state that ‘the responsibilities and tasks
[they] performed were the same’ and that ‘[t]here was no
relationship between the differences between the properties and
the tasks and duties [they] performed on a daily, weekly or
monthly basis.’ [Citations.]
“On the other hand, [APM] presents evidence that there are
a multitude of factors affecting the complexity of a property and
its manager’s tasks. [Citation.]
“Matthew Davidson . . . , [Modaraei’s] former supervisor,
testified that a property may be more complex than another
based on “[t]he type of issues that it’s facing, the size of the
building, the infrastructure, the size of the staff, the level of
amenities, the expectation of the residents.’ [Citation.] As an
example, he stated that ‘an older building might have a lot of
infrastructural repairs that are needed that require somebody
with some experience in managing large capital improvement
projects,’ while ‘a brand new building that was actually well built
may not require a lot of repairs, and so you can have a manager
who doesn’t have much experience on cap-ex but is a really good
people person who could make the residents feel good about their
living environment.’ [Citation.] In explaining how amenities
affect a property’s complexity, he stated: ‘Well, buildings have
different types of amenities, and the more stuff you have, the
more maintenance it takes and the more stuff goes wrong with it.
So you’re probably going to need a bigger staff and a larger
budget if you have to maintain a building that has a theater
room, a billiards room, a library, a conference room, a fitness
facility, an indoor pool, an outdoor pool, and seven levels of gated
parking than if you manage a building where everybody drives
10
into their own private garage and there’s one walkway in
between the units.’ [Citation.] As for the impact of building size,
he stated: ‘The buildings that we manage come in all different
shapes and sizes. We have one, I think it’s a nine-story building
in Santa Monica that has about 30 units and we have a building
in San Francisco that consists of four high-rise towers and 650
units.’ [Citation.] He continued: ‘Well, the bigger the building,
the more people it takes to run it, the larger the budget, and the
more residents you have all with their own opinions about how
they want their home to be managed and to look.’
“[APM’s] Person Most Knowledgeable, Matthew
Holbrook . . . echoed Davidson’s testimony,[7] but identified even
more factors affecting the tasks performed by CMs and GMs,
such as:
• Demographics (‘We actually have communities that would
be age-restricted communities, and then you have a whole
variety of ranges of types of demographics in each
community, and then there are subsegments within each
community where there can be differences from one part of
the community to another.’[8])
7 “When asked what factors go into the complexity of a
property, [Holbrook] responded: ‘The staffing requirements, the
services that are expected to be provided. The number of units
plays into that. The overall volume of the amenities, the
particular projects that may be in place at any given time, the
overall staffing requirements. I don’t know if I mentioned the
size of the budget. Anything that would add to the overall
dynamics of the workload.’ [Citation.]”
8“[Citation.] ‘If a community is age-restricted, then there’s
responsibilities that a manager has to require and oversee the
11
• Composition of Boards of Directors (‘Probably the primary
difference just being in the individual boards of directors
can differ. So just even personality differences within a
board of directors has a significant impact on the overall
nature of what it takes to manage the community.’)
• Governing rules (‘Yes, the bylaws, the CC&Rs, the articles
of incorporation, the architectural guidelines, the rules and
regulations. There are different municipality codes
restrictions, etcetera, that are going to impact different
communities in different ways based on where they’re
geographically located.’)
• Type of property (‘A community manager is going to be
responsible for overseeing the maintenance responsibilities
of the roofing of the condo most of the time. Whereas in a
single-family home community, they woud not be
responsible for the roofing of the homes.’[9])
• Property location (e.g., urban versus suburban areas) (‘I
can give you an example. So a high-rise community in
downtown Los Angeles would be – the manager of a
community would have responsibility to be overseeing
process of new owners completing the proper documentation
regarding the age restriction in the community.’ [Citation.]”
9 “[Citation.] In addition, a CM for a condominium is
responsible for ‘[e]xterior painting of the individual units’ and
‘[p]otentially the front yard landscape maintenance, the exterior
lighting of a particular unit, potentially some window repairs,
replacements; HVAC maintenance and repairs, replacement;
boiler repair, replacement; rear yard fencing maintenance,
repair, replacement; anything exterior to the unit or a part of the
structural components of the units.’ [Citation.]”
12
added – an additional security and patrol service on the
evening that the Los Angeles Kings won the Stanley Cup if
their building was located close to Staples Center, where
that event took place, in the event that there might be any
crowd issues that might result from that dynamic. That’s
unlikely to happen in a suburban area.’)
• Whether the property includes commercial units (‘Often in
the urban communities, there will be some commercial
component where there are commercial condominiums, and
so the manager would have the responsibility of interfacing
with the owners of the commercial units in the individual
businesses, which raises a whole different list of issues that
can arise.’)
• Whether the property is on a slope (‘The existence or
nonexistence of slopes will drive a significant difference in
what a manager’s duties are going to be.’)
“ . . . Here, the Court credits [APM’s] evidence (that there is
a wide variation in tasks performed by CMs and GMs due to the
differences in properties and the ensuing time demands on
managers) over [Modaraei’s] cookie-cutter evidence (that tasks
performed by CMs and GMs are exactly the same regardless of
the property).” (Fns. omitted.)
As we explained in Jaimez, “the California Supreme Court
has set forth the ‘proper legal criterion’ for determining whether
a class should be certified as ‘whether . . . plaintiffs . . .
established “by a preponderance of the evidence that the class
action proceeding is superior to alternate means for a fair and
efficient adjudication of the litigation.” ’ ” (Jaimez, supra, 181
Cal.App.4th at p. 1299, quoting Sav-On, supra, 34 Cal.4th at p.
332.) “A trial court ruling on a certification motion determines
13
‘whether . . . the issues which may be jointly tried, when
compared with those requiring separate adjudication, are so
numerous or substantial that the maintenance of a class action
would be advantageous to the judicial process and to the
litigants.’ ” (Sav-On, at p. 326.)
The trial court here evaluated the evidence in the context of
Modaraei’s theory of recovery, but it included the step that
Modaraei omitted. At the hearing on Modaraei’s motion, the trial
court repeatedly highlighted and asked for clarification of
Modaraei’s omission. Modaraei took several different runs at
establishing that the trial court could eventually discern a
limited set of tasks to then be classified. The trial court credited
APM’s contradictory evidence over evidence Modaraei collected,
that the “core tasks” of both jobs are: “(1) collecting and
processing dues; (2) processing service requests; (3) performing
light service requests; (4) walking around the property to observe
and record damage or disrepair; (5) providing customer service
for the HOAs; and (6) performing other secretarial work for the
HOAs.”
At the hearing, Modaraei’s argument focused almost
entirely on CM and GM job descriptions that included lists of
“duties” that Modaraei called “tasks.” Some of those duties were
“[i]mplement Board policy and directives within the scope of the
management contract,” “[s]upervise all on-site personnel,”
“[e]nsure compliance with all applicable Civil Codes and
Corporations Codes,” “[m]eet[] contractual obligations for each
community,” and “[g]uide, mentor and assist the respective board
of directors[] to make sound, prudent and lawful business
14
decisions.” 10 The trial court expressly highlighted Modaraei’s
conflation of “duties” with “tasks”: “I guess where I’m trying to
direct an understanding out is how this list of duties and
responsibilities turns into tasks. [¶] Because they are so broadly
articulated and broadly defined that, while my collection of duties
may define my job position, it certainly doesn’t translate into
enumerated tasks that all a jury then would have to do is decide
whether or not they’re exempt or nonexempt; and then whether
or not the class spent more than half of their time performing
them.”
Modaraei also argued that a variety of standardized
policies and procedures, like APM’s “Policy for Approval
Authority & Signing of Contracts,” the requirement that CMs
and GMs complete the “Certified Community Association
Manager” program, APM’s “Vendor Selection Policy,” and APM’s
“Guide to Community Management” standardized the positions
to the point that GMs and CMs could exercise no discretion. The
trial court determined that even with standardized policies,
liability for each class member would turn on how individuals
actually spent their time.
That the trial court weighed evidence and credited one
party’s evidence over conflicting evidence from another party does
not constitute an “improper criteria” or “incorrect legal analysis.”
(Sav-On, supra, 34 Cal.4th at p. 331 [“the trial court was within
its discretion to credit plaintiffs’ evidence on these points over
defendant’s, and we have no authority to substitute our own
judgment for the trial court’s respecting this or any other conflict
in the evidence”].) “ ‘Critically, if the parties’ evidence is
10The GM job description included 33 bullet points under
the “duties” heading; the CM job description included 28.
15
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 (Mies); Duran, supra, 59 Cal.4th at p. 25.)
2. Substantial Evidence
Because we have concluded the trial court’s ruling does not
rest on improper criteria or erroneous legal assumptions, we
confine the remainder of our review to whether substantial
evidence supports the trial court’s ruling. “As the Supreme Court
has noted, this deferential aspect of the standard of review means
that when an employee has sought to certify a ‘misclassification’
class of fellow employees with the same job title, the Courts of
Appeal have ‘routinely upheld’ trial court orders denying
certification, while also upholding other trial court orders
granting certification.” (Mies, supra, 234 Cal.App.4th at p. 981.)
The evidence APM relied on to oppose Modaraei’s motion is
sufficient to support the trial court’s ruling. APM produced
declarations from more than 30 putative class members
describing the variations in the properties and employees they
managed.
One GM was responsible for a 2,200 single-family residence
community with two pools and two recreational centers. Another
was responsible for a 43-story high-rise in San Diego with 248
units and amenities including a conservatory, a gym, sauna,
steam room, and a park. One CM was responsible for an
association that would eventually have 318 homes, but 43 had
not yet been built, and another that had 30 homes and would
eventually have 132 total single-family homes. That CM noted
16
that “[e]ach property is unique and requires different amounts of
time for management and oversight,” and cited one of the
properties that has two recreational areas, lawn areas, and four
entrance gates. Another was responsible for four mid-rise condos
and one townhome condo in the Los Angeles area. Two of the
properties were similar and had similar projects like garage
cleaning and hydrojetting, which the CM stated required more
attention than the townhome property. “[T]he hours I work at
each property are constantly changing depending on different
circumstances affecting each community and what each contract
states,” she said.
The record reflects properties varying in size from a single
building with 28 units to a property with 2,892 single-family
residences. Property types ranged from simple condominiums to
a community of 41 single-family estates. Individual home values
across properties ranging from $200,000 to $30,000,000.
Amenities varied from properties with few amenities to a
property with a club house, swimming pool, tennis courts, bocce
ball courts, fitness center, learning center, ballroom, café, spa,
conference rooms, and a golf course. Some managers supervised
no other employees, while one supervised as many as 80. And
while some managers (primarily GMs) managed only one
property, the record contains declarations from two CMs who
were each responsible for nine separate properties. The record
contains evidence sufficient to support the trial court’s
determination that variations between the hundreds of properties
the 228 putative class members were responsible for would
command individual inquiries into how CMs and GMs actually
spend their time to reach individual liability determinations.
17
We note, as the Supreme Court did in Sav-On, that this
case turns primarily on the standard of review. In Sav-On, the
Court wrote: “We need not conclude that plaintiffs’ evidence is
compelling, or even that the trial court would have abused its
discretion if it had credited defendant’s evidence instead. ‘[I]t is
of no consequence that the trial court believing other evidence, or
drawing other reasonable inferences, might have reached a
contrary conclusion.’ ” (Sav-On, supra, 34 Cal.4th at p. 331.)
Superiority
The trial court determined that Modaraei’s “proposed trial
plan is inadequate” because it did not address APM’s “defense
that there are variations in the tasks performed and the time
spent on those tasks by CMs and GMs.” The trial court also
rejected Modaraei’s expert witness’s proposal to conduct
statistical analysis after class certification to reach a conclusion
about tasks class members performed and how much time they
spent performing those tasks. “[A] promise to conduct a
statistical analysis in the future is not a trial plan,” the trial
court said.
We agree with the trial court’s analysis. The evidence to
support the trial court’s superiority determination is largely the
same as evidence supporting the predominance determination;
because any trial about APM’s liability to its CMs and GMs
would break down into individual trials for each GM and CM, we
find no abuse of discretion.
II. Termination of Depositions of APM Declarants
We review trial court discovery orders for abuse of
discretion. (Williams v. Superior Court (2017) 3 Cal.5th 531,
540.)
18
Modaraei contends that the trial court abused its discretion
when it terminated depositions of putative class members whose
declarations APM submitted in opposition to Modaraei’s motion
for class certification. Modaraei argues that “the remaining
deposition testimony was critical to the issues before the court”
because “[a]dditional testimony as to what the declarants did and
the lack of variation between properties would have allowed
[Modaraei] to address the court’s concerns about commonality.”
The trial court did not abuse its discretion. As APM has
pointed out and as the trial court explained at length during the
class certification hearing, Modaraei had more than ample
opportunity to obtain discovery from putative class members,
including their depositions, between the time the case was filed
in November 2012 (or even the time the motion for class
certification was filed in October 2014) and the time APM filed its
opposition to class certification in September 2017.
Modaraei filed declarations of putative class members in
support of his motion for class certification. Eight of those
declarations constituted a “Compendium of Putative Class
Member Declarations in Support of Plaintiff Ron Modaraei’s
Class Certification.” Modaraei also submitted deposition
testimony from nine more putative class members in support of
his motion. Modaraei possessed names and contact information
for every class member for at least two years before the hearing
on his motion for class certification. He had every opportunity to
get the discovery he needed to support his motion for class
certification.
Additionally, based on his arguments here, none of the
information he could have obtained by deposing every single
putative class member (even outside APM’s declarants) would
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have changed the outcome. Modaraei contends that the trial
court used improper criteria to arrive at a ruling on the motion
for class certification. The criteria Modaraei contends the trial
court should have used has nothing to do with variations in
properties that APM presented. There is nothing in either the
record or the parties’ briefs, therefore, to suggest that deposing
even every single class member (as Modaraei theoretically had
both the time and access to do) would have changed the
argument Modaraei made to the trial court. Neither is there
anything in the record or in the parties’ briefs to suggest that the
trial court would have reached some different conclusion on class
certification had it been able to see more of the same type of
evidence Modaraei had already presented. The trial court noted
as much at the class certification hearing: “[T]hose depositions
don’t change the gravamen of your argument. The gravamen of
your argument is that the PMK said, ‘this is a complete
description of the duties and responsibilities of the putative class
members. [¶] ‘With those duties and responsibilities, I have
sufficient predominant common proof, and I can go through this
list of duties and responsibilities, assign them to either exempt or
nonexempt classifications, and compute whether or not it exceeds
50 percent.’ [¶] That’s your argument. So it doesn’t make a
whole heck of a lot of difference about the declarations because
your argument doesn’t rely on them. It doesn’t.”
Moreover, Modaraei does not challenge the scope of the
trial court’s discovery orders (that he violated), but rather he
challenges the trial court’s decision to enforce the discovery
orders it made by not allowing further violations. The trial court
allowed Modaraei depositions of APM’s putative class member
declarants “for the limited purpose of asking about the way in
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which the declarations were prepared, the witnesses’
participation in the preparation of that declaration, and to
examine the question of whether or not the similarity of the
declarations supported some kind of contention that they had
been invented by the lawyers or otherwise weren’t their genuine
recollection or recall . . . . [¶] Despite the fact that the discovery
was limited solely to the preparation of the declaration, questions
were asked by plaintiff’s counsel that went far outside of that
order. [¶] I got an emergency request for a further status
conference. It was conducted, and I declined to allow the
discovery to go forward because it didn’t appear that the stated
reason for needing the discovery was, in fact, the reason that – it
didn’t comport with the questions being asked.”
On this record, we find no abuse of discretion. And given
the record and Modaraei’s arguments here, we could not conclude
that any error would have been prejudicial. (See MacQuiddy v.
Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045.)
DISPOSITION
The trial court’s orders are affirmed. APM is entitled to its
costs on appeal.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J. *
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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