Koval v. Pacific Bell Telephone Co.

Filed 12/31/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
FRANK KOVAL et al.,
Plaintiffs and Appellants,
A139570
v.
PACIFIC BELL TELEPHONE CO., (Alameda County
Super. Ct. No. JCCP004637)
Defendant and Respondent.
INTRODUCTION
Plaintiffs Frank Koval, Mike Williams, Vanmark Strickland, and Donald
Washington filed this consolidated class action lawsuit against their employer, defendant
Pacific Bell Telephone Company (d.b.a. AT&T California) (Pacific Bell). They alleged
Pacific Bell violated California law by failing to relinquish control over their activities
during meal and rest break periods, and moved for class certification. Relying, in part, on
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), the trial
court concluded plaintiffs failed to show Pacific Bell’s allegedly restrictive policies had
been consistently applied to the putative class members. The court denied class
certification on the ground that common questions do not predominate over individual
questions, making the class action procedure an inappropriate method for resolving this
dispute. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Background
Pacific Bell is a telecommunications company providing wireline local telephone
service, as well as digital television and Internet service, to residential, business, and
1
governmental customers throughout much of the state of California. Named plaintiffs
Koval, Williams, Strickland, and Washington are or were hourly nonexempt field
technicians employed at one or more of Pacific Bell’s regional operations.
State law obligates employers to afford their nonexempt employees meal periods
and rest periods during the workday. (See Lab. Code, §§ 226.7, 512; Cal. Code Regs., tit.
8, § 11040 (Industrial Wage Commission (IWC), wage order no. 4-2001)(Wage Order
No. 4).)1 Labor Code section 226.7, subdivision (b)2 prohibits an employer from
requiring an employee “to work during a meal or rest period . . . mandated pursuant to an
applicable . . . order of the Industrial Welfare Commission . . . .” In turn, Wage Order
No. 4, subdivision 12 prescribes rest periods, while subdivision 11, as well as section 512
of the Labor Code, prescribes meal periods. Employers who violate these requirements
must pay premium wages. (§ 226.7, subd. (c); Wage Order No. 4, subds. 11(B), 12(B);
see Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1113-1114
(Murphy).)
II. Commencement of Action
On February 16, 2010, plaintiff Washington filed a putative class action against
Pacific Bell in the Superior Court, County of Los Angeles, seeking to represent “all
service technicians” employed by Pacific Bell. Among his claims, the complaint alleged
failure to provide meal and rest break periods or to pay compensation in lieu thereof.
1
The IWC “is the state agency empowered to formulate wage orders governing
employment in California. [Citation.] The Legislature defunded the IWC in 2004,
however its wage orders remain in effect.” (Murphy, supra, 40 Cal.4th at p. 1102, fn. 4.)
IWC wage order no. 4-2001 (Wage Order No. 4), which covers technical and mechanical
occupations, applies here. (Cal. Code Regs., tit. 8, § 11040, subd. 2(O).)
2
All further statutory references are to the Labor Code unless otherwise specified.
2
On April 20, 2010, plaintiffs Koval, Strickland, and Williams, along with Kenesha
Mayfield and Frank Manibusan, filed a similar putative class action in the Superior
Court, County of Alameda.3
On September 28, 2010, the Los Angeles and Alameda County actions were
ordered consolidated.
On January 25, 2011, the trial court issued an order allowing plaintiffs to file a
consolidated amended class action complaint.
On November 1, 2011, plaintiffs filed a second consolidated amended class action
complaint.
On October 12, 2012, plaintiffs filed a third consolidated amended class action
complaint. This is the operative complaint for purposes of this appeal. In the complaint,
plaintiffs purport to represent all individuals employed by Pacific Bell in nonexempt field
personnel classifications, such as service technicians, systems technicians, cable locators,
and splicing technicians, from February 16, 2006 through the date of judgment. The
complaint alleges the following causes of action: (1) failure to provide meal periods, (2)
failure to provide rest breaks, (3) failure to pay wages at overtime rate, (4) failure to
provide accurate itemized wage statements, (5) failure to timely pay wages due at
termination, (6) violation of unfair competition law (Bus. & Prof. Code, § 17200 et seq.,
hereafter UCL), and (7) enforcement of the Private Attorneys General Act of 2004
(PAGA).
III. Motion for Class Certification
On July 16, 2012, plaintiffs filed a motion for class certification under Code of
Civil Procedure section 382. In addition to certification of the class of nonexempt field
personnel, plaintiffs sought authorization for two subclasses: one for waiting-time
3
Mayfield and Manibusan were voluntarily dismissed as named plaintiffs on July 1,
2011.
3
penalties and another for itemized-wage-statement and PAGA penalties.4 Plaintiffs
focused on Pacific Bell’s written job performance guidelines, which they claimed contain
several explicit restrictions on how employees could spend their meal and rest periods.
By imposing these restrictions, Pacific Bell allegedly failed to release the employees
from the company’s control during their breaks.5
In support of their certification motion, plaintiffs submitted copies of 13
documents they referred to collectively as “Job Performance Policies and Expectations”
(JPPE’s). The documents – bearing titles such as “Local Field Operations (“LFO”)-Out
Standards,” “Roles and Responsibilities For Systems Technicians,” and “Business
Service Operations-Job Standards” – are regional field operations manuals that were in
effect at various times. These documents collectively contain hundreds of guidelines and
best practices regarding field technician job duties. From these manuals, plaintiffs
extracted seven allegedly restrictive guidelines.6 Six guidelines purportedly impacted
technicians’ autonomy during meal periods, while one applied to rest breaks only.
Plaintiffs asserted these guidelines, among other things, converted them and their fellow
class members into “de facto security guards for their company vehicles during their
breaks,” thereby failing to relieve them of all work-related duties.
In brief, six guidelines allegedly prohibited employees on meal breaks from:
(1) meeting up with their colleagues (“no ganging up”), (2) going to their personal
residences, (3) leaving their trucks (“abandonment”), (4) riding in other vehicles, (5)
sleeping in trucks, or (6) driving their trucks outside normal work routes to get a meal
4
The putative class is estimated to include approximately 6,700 current and former
employees.
5
California Code of Regulations, title 8, section 11090, subdivision (2)(G) provides:
“ ‘Hours worked’ means the time during which an employee is subject to the control of
an employer, and includes all the time the employee is suffered or permitted to work,
whether or not required to do so.”
6
Not all of the various field operations manuals contain all seven of the targeted
guidelines. The manuals were consolidated into a single set of JPPE’s in 2008.
4
(“out-of-route rule”). While exceptions could be made to some of these restrictions,
deviations had to be noted on the employee’s timesheet with the name of the manager
who approved the deviation. A seventh policy provided that employees were not allowed
to take rest breaks at coffee shops or restaurants.
It is undisputed that Pacific Bell has facially compliant meal and rest break period
policies. Because Pacific Bell’s official meal-period policies are facially valid, the issue
here is whether other systematic company guidelines prevented employees from fully
realizing the breaks to which they were entitled. Plaintiffs supported their assertions with
declarations from 76 class members. Each described how they became aware of the
JPPE’s and how the policies impacted their meal and rest breaks. Plaintiffs also included
deposition testimony from James Beck, who was designated as Pacific Bell’s most
knowledgeable person with regard to the policies at issue, as well as testimony from other
management-level employees.
Beck testified that field employees are expected to adhere to the expectations
contained in the JPPE’s. Failure to do so can result in disciplinary action up to, and
including, dismissal. He acknowledged that between 2006 and 2010, field technicians
were prohibited from going out of route without management approval, including during
their meal and rest periods. Employees were also instructed not to leave their vehicles to
ride in a separate vehicle to another location during their breaks. He confirmed the policy
prohibiting employees from “ganging up” applied during meal periods.
On October 12, 2012, Pacific Bell filed its opposition to the motion for class
certification. The company asserted there were no uniform written rules restricting its
employees’ meal-time activities. Instead, plaintiffs’ allegations rested entirely on the oral
instructions that were given to them by their individual supervisors. It further argued that
its liability, if any, “could flow only from a supervisor’s misinterpretation of written rules
or exercise of discretion.” It claimed individualized inquiries would thus be needed to
determine which oral instructions had been given to each putative class member. It
5
supported its argument with deposition excerpts from several putative plaintiffs. For
example, some technicians stated they were never told to stay with company vehicles
during lunch. Supervisors had also provided highly variable instructions regarding
whether field personnel could go home at lunch, with some prohibiting the practice and
others allowing it. Others allowed it only if the employee’s home was in route or if he or
she obtained prior permission. Pacific Bell also offered a declaration of Beck, in which
he stated that supervisors had discretion over whether to make exceptions to the JPPE’s.7
Pacific Bell concluded that determining whether the policies were so restrictive as to
have transformed break time into work time would necessitate individualized inquires.
Following a hearing, the trial court found the proposed class and subclasses to be
both ascertainable and sufficiently large. The court observed, under the leading case of
Brinker, supra, the relevant inquiry as to commonality could be analyzed by examining
whether the disputed workplace policies were both uniform and consistently applied.
The court noted plaintiffs had submitted 13 different versions of Pacific Bell manuals that
had been in force at various times during the proposed class period. Notwithstanding this
diversity, the court determined the language in the various manuals and documents, while
somewhat inconsistent, could be deemed substantially similar so as to satisfy the
“uniform policy” standard for class certification. The trial court reasoned that minor
dissimilarities in the policies governing particular class members could potentially be
addressed by subclassing.
However, as to the second inquiry under Brinker, the trial court concluded the
evidence revealed the policies had not been consistently applied: “What is important, and
7
Beck asserted the following passage, which appears in many of the guidelines, gives
supervisors “the discretion to interpret and apply the guidelines and to develop local
standards: [¶] In addition to the standards outlined in this document, all employees have
standards, policies, and expectations that have been developed and deployed by
their local management teams. Generally, these policies add to the expectations in this
document and are not in conflict with them. However, the circumstance where local
policy and/or agreements are in direct conflict with expectations in this document,
employees are guided appropriately.” (Emphasis in declaration.)
6
ultimately fatal to Plaintiffs’ bid for class certification, is the manner in which the six
rules reflected in the written materials were applied, and that in turn begins with the
question of how the rules were communicated.” Specifically, the evidence showed these
policies were disseminated orally by line supervisors in ways that varied widely, creating
“serious doubt . . . as to whether the rules were consistently applied so as to allow
adjudication of the liability issues on a class-wide basis.”8 For this reason, the court
denied class certification. This appeal followed.
DISCUSSION
We briefly revisit the legal requirements for certification of a class action and then
examine plaintiffs’ contentions.
I. Class Action Certification and Standard of Review
The certification question is “essentially a procedural one that does not ask
whether an action is legally or factually meritorious.” (Linder v. Thrifty Oil Co. (2000)
23 Cal.4th 429, 439-440.) “A trial court ruling on a certification motion determines
‘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
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) A party
seeking class certification must show “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,
supra, 53 Cal.4th at p. 1021; see Code Civ. Proc., § 382.)
The community-of-interest requirement comprises three factors: predominant
common questions of law or fact; class representatives with claims or defenses typical of
8
For example, plaintiff Washington understood the “out-of-route rule” prohibited going
over a mile off route, but had also heard it meant not going to a different town. Other
workers understood that they could go out of route to find food, or could do so with
management approval.
7
the class; and class representatives who can adequately represent the class. (Brinker,
supra, 53 Cal.4th at p. 1021.) In this appeal, the sole issue is whether plaintiffs
established the element of predominance of common questions. This element requires,
essentially, that factual and legal questions common to the claims of the putative class
members predominate over issues affecting members individually. Generally, “if the
defendant’s liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their damages.” (Id.
at p. 1022.) To determine the issue, the trial court “must examine the plaintiff’s theory of
recovery, assess the nature of the legal and factual disputes likely to be presented, and
decide whether individual or common issues predominate.” (Id. at p. 1025.)
Whether to certify a class rests within the broad discretion of the trial court.
(Brinker, supra, 53 Cal.4th at p. 1022.) Generally, an order denying certification will not
be disturbed unless it: (1) is unsupported by substantial evidence, (2) rests on improper
criteria, or (3) rests on erroneous legal assumptions. (Id. at p. 1022.)
II. Meal and Rest-Break Law Under Brinker
In Brinker, the California Supreme Court clarified that an employer is required to
make uninterrupted meal periods and rest breaks available to its employees, but is not
obligated to ensure that they are taken.9 (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–
1041.) The court summarized its holding as follows: “An employer’s duty with respect
to meal breaks . . . is an obligation to provide a meal period to its employees. 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.
9
Previously, the Supreme Court had held that an employer may be found liable even
when it makes rest and meal breaks available to nonexempt employees if it also requires
them to be available for work during those periods. (See Murphy, supra, 40 Cal.4th 1094at p. 1104 [requirement to provide rest and meal periods implies that employee will “be
free of the employer’s control during the meal period”].)
8
What will suffice may vary from industry to industry, and we cannot in the context of this
class certification proceeding delineate the full range of approaches that in each instance
might be sufficient to satisfy the law.” (Brinker, supra, 53 Cal.4th at p. 1040.)
In the course of its ruling, the Brinker court stated: “Claims alleging that a uniform
policy consistently applied to a group of employees is in violation of the wage and hour
laws are of the sort routinely, and properly, found suitable for class treatment.” (Brinker,
supra, 53 Cal.4th at p. 1033, italics added.) In support of this statement, the court cited
three Court of Appeal cases: Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286(Jaimez), Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524 (Ghazaryan),
and Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 (Bufil). In all
three cases the appellate courts concluded the lower courts had abused their discretion by
denying class certification. (Jaimez, supra, at pp. 1299-1307; Ghazaryan, supra, at pp.
1534-1538; Bufil, supra, at pp. 1205-1206.) These opinions reasoned that the plaintiffs
were challenging uniform employment policies that allegedly violated California law
and, therefore, the violations could be proved (or disproved) through common facts and
law. (Jaimez, supra, at pp. 1299-1300; Ghazaryan, supra, at pp. 1536-1538; Bufil, supra,
at p. 1206.) The courts in Jaimez and Ghazaryan also concluded common issues can
predominate even if damages must be proved individually. (Jaimez, supra, at pp. 1300-
1301, 1303-1305; Ghazaryan, supra, at pp. 1536-1537.)
III. The Trial Court Applied the Correct Legal Standard
In their motion for certification, plaintiffs argued that the JPPE’s were uniform
policies governing all California field personnel. Their memorandum of points and
authorities highlights the same “uniform policy consistently applied” language from the
Brinker case that the trial court used to craft its two-step analysis. Thus, they essentially
invited the court to use this language as the framework for its decision. While plaintiffs
did not assert that Brinker had created a two-part test, we do not perceive that the trial
court here treated the passage from Brinker as such.
9
It is true that the Brinker court observed “a uniform policy consistently applied”
can support certification. (Brinker, supra, 53 Cal.4th at p. 1033.) But it did not say that a
case must proceed as a class action when there is such a facially uniform policy. Brinker
simply points out that class treatment can be appropriate in a wage-and-hour case
involving a uniform policy, especially one that is being applied consistently. We also
disagree with plaintiffs’ contention that the trial court’s ruling “necessarily rested on its
merits determination that a legally material distinction exists among the JPPEs . . . .”
Rather than making a determination on the merits, the court made a determination that
the merits cannot be determined on a classwide basis. As we will discuss, this finding
was well within the permissible bounds of the court’s discretion.
IV. There Was No Abuse of Discretion
Plaintiffs assert the court “committed legal error by rewriting [their] theory of
liability” and imputing from Brinker a requirement that they introduce facts showing
“both uniform policies and consistent application of those policies” in order to find that
common issues predominate for purposes of class certification. (Italics added.) They
contend their theory of liability requires only a showing of the existence of a uniform
policy that conflicted with Pacific Bell’s obligation to provide them with duty-free
breaks. They claim a trial court’s inquiry at the certification stage should be on the
moving party’s asserted theory of liability, rather than on how the allegedly unlawful
policies were implemented.
We conclude the trial court here did not misapply Brinker. As to certification,
Brinker summarized the governing principles as follows: “Presented with a class
certification motion, a trial court must examine the plaintiff’s theory of recovery, assess
the nature of the legal and factual disputes likely to be presented, and decide whether
individual or common issues predominate.” (Brinker, supra, at p. 1025.) In the present
case, the trial court simply made a determination as to whether plaintiffs’ action, overall,
is amenable to class treatment. Recent appellate decisions show that the existence of a
10
uniform policy does not limit a trial court’s inquiry into whether class action treatment is
appropriate in meal and rest-break cases.
In Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278 (Hall), the appellate court
described its view of post-Brinker developments: “Subsequent cases have concluded,
considering Brinker, that when a court is considering the issue of class certification and is
assessing whether common issues predominate over individual issues, the court must
‘focus on the policy itself’ and address whether the plaintiff’s theory as to the illegality
of the policy can be resolved on a classwide basis. [Citations.] Those courts have also
agreed that, where the theory of liability asserts the employer’s uniform policy violates
California’s labor laws, factual distinctions among whether or how employees were or
were not adversely impacted by the allegedly illegal policy does not preclude
certification. [Citation.]” (Hall, supra, 226 Cal.App.4th at p. 289, italics added.)10
In Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701(Benton), also relied on by plaintiffs, the appellate court considered whether a proposed
class of cell phone tower technicians asserting meal and rest break violations could
establish the employer’s liability through common proof. In that case, the employer,
Telecom Network Specialists (TNS), provided personnel services to the
telecommunications industry by hiring employees directly or by retaining them through
staffing agencies. (Id. at p. 705.) The plaintiff, a contractor technician, alleged TNS had
failed to ensure its staffing agencies complied with wage and hour laws and sought to
certify a class of contractor technicians. The complaints alleged there were “ ‘numerous
questions of law and fact common to the [class],’ including, in part: ‘[w]hether TNS was
the employer of the [c]lass [m]embers’; ‘[w]hether TNS provided meal [and rest] breaks
in accordance with California law’; and ‘[w]hether the [c]lass [m]embers were denied
10
We observe, just as these factual distinctions do not preclude certification, the
existence of a uniform policy does not necessarily mandate certification. Each case must
be addressed on its own unique facts.
11
premium wages for overtime worked in violation of California law.’ ” (Benton, supra,
220 Cal.App.4th at p. 706.) The trial court denied the motion for certification based on
its finding that the technicians were governed by a wide range of staffing company
management policies and worked in diverse workplace environments. (Id. at pp. 714-
715.)
In keeping with the Supreme Court’s rationale in Brinker, the Court of Appeal
reversed the trial court’s order denying class certification. (Benton, supra, 220
Cal.App.4th at p. 731.) Quoting another post-Brinker decision (Faulkinbury v. Boyd &
Associates, Inc. (2013) 216 Cal.App.4th 220, 235 (Faulkinbury)), the Benton court stated,
“ ‘the employer’s liability arises by adopting a uniform policy that violates the wage and
hour laws. Whether or not the employee was able to take the required break goes to
damages, and “[t]he fact that individual [employees] may have different damages does
not require denial of the class certification motion.” ’ ” (Benton, supra, 220 Cal.App.4th
at p. 726; see also Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129,
1151 (Bradley) [“[u]nder the logic of [Brinker], when an employer has not authorized and
not provided legally required meal and/or rest breaks, the employer has violated the law
and the fact that an employee may have actually taken a break or was able to [take a
break] during the workday does not show that individual issues will predominate in the
litigation”].)
Notably, the appellate court did not hold that certification is required in all cases
involving allegedly uniform policies. Instead, the opinion held that the lower court had
erred in “fail[ing] to evaluate whether plaintiffs’ theory of recovery could be proved (or
disproved) through common facts and law.” (Benton, supra, 220 Cal.App.4th at p. 731,
italics added.) Further, we note that, in spite of this error, the appellate court did not
order the trial court to certify the matter as a class action. Instead, the case was remanded
for reconsideration: “Although the reasons set forth in the trial court’s written order do
not provide a sufficient basis for denying class certification, the record demonstrates that
12
TNS raised additional arguments which the court did not address.” (Ibid.) Thus, the
existence of a uniform policy is not the sole deciding factor in a certification analysis.
Plaintiffs assert their “theory of liability” is that Pacific Bell’s policies, as written,
fail to comply with California law on their face. While Pacific Bell maintained written
policies that are uniform, in the sense that they are in writing, the evidence supports the
trial court’s conclusion that supervisors did not consistently articulate these policies to
class members. Instead, substantial evidence supports the court’s finding that each
supervisor conveyed the policies to class members orally, a practice which the evidence
also shows resulted in diverse practices and differing interpretations as to what the rules
required. In this sense, the policies are far from uniform. We agree with the court that
this management practice, combined with the confusing overlay of policy manuals
containing different combinations of rules that were applicable to the various job
classifications at different times, creates a shifting kaleidoscope of liability
determinations that render this case unsuitable for class action treatment.
The present case is more similar to Morgan v. Wet Seal, Inc. (2012) 210
Cal.App.4th 1341 (Morgan), on which Pacific Bell relies. In that case, the plaintiffs
alleged that the employer required employees to purchase company clothing to wear for
work. (Id. at p. 1344.) They sought certification due to the employer’s failures to
reimburse employees for such expenses. (Id. at p. 1345.) The employer’s written
company policy stated that employees were not required to purchase company clothing as
a condition of employment. (Id. at pp. 1347-1349.) Consequently, the plaintiffs’ motion
relied on what managers told employees in person, through e-mail, and through other
communications as proof that the clothing requirement existed. (Id. at pp. 1350-1353.)
Without a clear company policy, the appellate court concluded there was no common
method to prove classwide liability because each individual plaintiff would have his or
her own story and individual interpretation of what he or she had been told. (Ibid.) Here,
while Pacific Bell’s written policies were expressly stated, substantial evidence supports
13
the trial court’s conclusion that the manner in which the policies were communicated to
class members was extremely variable.11
Thus, the instant case is distinguishable from Ghazaryan, supra, and Jaimez,
supra. In both cases, the plaintiffs produced substantial evidence of a company-wide
employment policy. The core liability issue was whether that policy was legal or not.
(Ghazaryan, supra, 169 Cal.App.4th at p. 1536; Jaimez, supra, 181 Cal.App.4th at pp.
1299-1301.) The appellate courts in both cases noted that declarations describing
possible individual variations in the application of the policy could be relevant to the
secondary issue of damages, but that damages issue did not predominate over the
common issue regarding the legality of the policy itself. (Ghazaryan, supra, 169
Cal.App.4th at pp. 1529-1530; Jaimez, supra, 181 Cal.App.4th at pp. 1300-1301.) In
distinguishing these two cases, the court in Morgan made the following observation:
“Here, by contrast, plaintiffs produced declaration evidence in an effort to establish a
classwide method of proving liability but, as the trial court found, those declarations are
not substantial evidence of an articulable companywide policy which could be used to
establish classwide liability.” (Morgan, supra, 210 Cal.App.4th 1341 at p. 1368.) In the
present case, while the written JPPE’s themselves arguably constituted articulable
company-wide policies, the manner in which the policies were implemented was
anything but uniform.
We thus concur with the trial court that it would be impractical to “consider each
possible combination and interpretation of the six rules, have the trier of fact determine
which combinations rise to the level of control so as to amount to a failure to relieve of
all duties, and then have each class member show whether he or she was subject to one of
the offending combinations of rules. Such an exercise would be totally unmanageable.”
11
Plaintiffs do not dispute that variations existed among Pacific Bell’s various dispatch
garages as to how supervisors communicated the company’s JPPE’s to plaintiff class
members. We note during the class period, Pacific Bell operated an average of 213 field
garages in California.
14
We appreciate the court’s concerns: “Trial courts must pay careful attention to
manageability when deciding whether to certify a class action. In considering whether a
class action is a superior device for resolving a controversy, the manageability of
individual issues is just as important as the existence of common questions uniting the
proposed class.” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29.) In sum,
we conclude plaintiffs have failed to demonstrate that the lower court abused its
discretion in denying certification.12
DISPOSITION
The order denying class certification is affirmed.
_________________________
Dondero, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
12
In their reply brief, plaintiffs assert the court erred by not allowing class certification
on behalf of specifically identified subclasses. They did not raise this contention in their
opening brief. An appellant’s failure to raise an argument in its opening brief waives the
issue on appeal. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349,
361.)
15
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Wynne S. Carvill
Counsel for Plaintiffs and Appellants: Hoffman Libenson Saunders & Barba:
Chad A. Saunders
and
H. Tim Hoffman
The Cooper Law Firm:
Scott B. Cooper
Altshuler Berzon LLP:
Michael Rubin
Counsel for Defendant and Respondent: Morgan Lewis & Bockius LLP:
George Stohner,
Thomas M. Peterson,
Rebecca D. Eisen
and
Stephen L. Taeusch
AT&T Services, Inc.:
Jennifer S. Abramowitz
16