152 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com 371 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51, 131 S. Ct. 2541, 2551 (2011) (“sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question … and certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied”; “[A]ctual, not presumed, conformance with Rule 23(a) remains ... indispensable. Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.”) (internal citations omitted). 372 Richmond v. Dart Indus., Inc., 29 Cal. 3d 462, 470 (1981). 373 See Barriga v. 99 Cents Only Stores LLC, 51 Cal. App. 5th 299, 310 (2020) (99 Cents “argued the proposed classes should not be certified because individual issues predominate.”). 374 Id. at 307. 375 Id. 376 Id. at 336 (“[T]he court had the duty to scrutinize all the declarations and the authority to strike any of them if it found evidence of coercion or abuse.”) (emphasis in original). 377 Id. at 333-34. 378 Id. at 340 (“[N]o court has ever overturned a certification order based on an evidentiary ruling without determining whether the ruling affected the order. This is a first.”) (emphasis in original). 379 Sav-On Drug Stores, Inc. v. Superior Ct., 34 Cal. 4th 319 (2004). 380 Id. at 331; accord Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1026 (2012). 381 Sav-On Drug Stores, Inc., 34 Cal. 4th at 326-27; accord Brinker Rest. Corp., 53 Cal. 4th at 1022 (presuming “in favor of the certification order … the existence of every fact the trial court could reasonably deduce from the record”). 382 Sav-On Drug Stores, Inc., 34 Cal. 4th at 340. 383 Id. at 327, 329 n.4. 384 Id. at 327, 332. 385 Id. at 327-28. 386 Id. at 343. 387 Id. at 326 (trial courts “are afforded great discretion in granting or denying certification”). 388 Id. at 339. 389 Brinker, 53 Cal. 4th at 1025 (“trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision”). 390 Faulkinbury v. Boyd & Assocs., 216 Cal. App. 4th 220, 232-35 (2013), disapproved on other grounds by Noel v. Thrifty Payless, Inc., 7 Cal. 5th 955 (2019), held that unlawful break policies provided sufficient basis to find predominating common issues for purposes of class certification, even if the policy was not uniformly applied. The Court of Appeal suggested that whether an employee was actually denied breaks was a damages question that did not preclude class certification. Id. at 235. Faulkinbury would be distinguishable where employers have legally compliant policies and practices. See, e.g., Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 942 (2016), review denied (Mar. 15, 2017) (for purposes of class certification, “‘the employer’s liability arises from adopting a uniform policy that violates the wage and hour laws’”). Benton v. Telecom Network Specialists, Inc., 220 Cal App. 4th 701, 726 (2013), held that an alleged joint employer’s lack of a lawful written policy on meal and rest breaks was a sufficient basis for certifying a class of technicians, even though many knew they could take breaks, and did so. The Court of Appeal held that the class could be certified on a theory that the defendant unlawfully failed to adopt a policy authorizing and permitting breaks. The theory was that the defendant, as an alleged co-employer, had to ensure that the technicians knew of their break rights. This suggestion that certification can rest on a theory that the defendant failed to adopt a formal break policy, even where the employees knew their rights and exercised them, is another example of a court liberally interpreting Brinker to the plaintiff’s advantage. The Supreme Court, in Ayala v. Antelope Valley Newspapers, 59 Cal. 4th 522, 536-38 (2014), held that a uniform written contract under which a newspaper company engaged newspaper carriers as independent contractors could support a class action alleging that the company retained the right to control the manner of means of delivery, making the carriers employees who could assert various rights under the Labor Code. The Supreme Court held that whether the defendant actually exercised varying degrees of control over the carriers was immaterial, because the proper inquiry is whether the defendant had the contractual right to control the worker. Id. 391 Donohue v. ANM Servs., LLC, 11 Cal. 5th 58, 75-76 (2021). 392 E.g., Altiery v. Granite Rock Co., No. H045263, 2021 WL 3825309 (Cal. App. 6th Aug. 27, 2021) (unpublished and not citable in California courts); Salazar v. See’s Candy Shops, Inc., 64 Cal. App. 5th (2021), review denied and ordered not to be officially published (Cal. Aug. 11, 2021); Cacho v. Eurostar, Inc., 43 Cal. App. 5th 885 (2019), review denied and ordered not to be officially published (Cal. Dec. 23, 2019); Tien v. Tenet Healthcare, 209 Cal. App. 4th 1077 (2012), review denied and ordered not to be officially published (Cal. Jan. 16, 2013); Flores v. Lamps Plus, 209 Cal. App. 4th 35 (2012), review denied and ordered not to be officially published (Cal. Dec. 12, 2013); Hernandez v. Chipotle Mexican Grill, 208 Cal. App. 4th 1487 (2012), review denied and ordered not to be officially published (Cal. Dec. 12, 2013). 393 Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1, 34-36 (2014). 394 Id. at 27 (“Class certification is appropriate only if these individual questions can be managed with an appropriate trial plan.”). 395 Id. at 29 (“Trial courts also have the obligation to decertify a class action if individual issues prove unmanageable.”) (citations omitted).
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