136 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com in that a trial court’s order denying certification was entitled to similar deference: “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.”699 Accordingly, the same types of arguments that the defendant in Sav-On raised—that individualized issues will predominate over common ones—still have potential to persuade a trial court to deny certification; the trial court simply has the discretion to accept or reject the argument based on its assessment of the facts before it. While Sav-On does not mandate certification in misclassification cases, the California Supreme Court specifically identified several issues that are commonly present in many manager misclassification cases that could be established through collective proof: • whether, as the plaintiff argued, the defendant had a deliberate policy to misclassify non-exempt employees as exempt; • whether the defendant implicitly conceded all the employees were non-exempt when it reclassified all the employees at issue as non-exempt; • whether any given task within the limited universe of tasks that managers performed qualifies as exempt or non-exempt; and • whether a manager following the defendant’s reasonable expectation for performing the job would spend the majority of the work time on exempt duties.700 In Sav-On, the Court held that a trial court could rationally conclude that those common issues predominated over the individualized issues concerning how individual managers spent their time. Dismissing concerns that these cases could prove unmanageable, the Court further noted that the trial court had broad discretion as to how to handle individualized issues once the class issues were resolved. Sav-On said little more about those proceedings other than to encourage trial courts to be “procedurally innovative” in fashioning procedures to resolve remaining individualized issues efficiently.701 In the immediate wake of Sav-On, there appeared to be a trend among trial courts to certify more exemption misclassification cases. That trend was offset somewhat in 2006 by the issuance of a published appellate decision that expressly made the point that the California Supreme Court had implied in Sav-On: that a trial court’s decision to deny certification is entitled to the same deference as a decision to certify a class. In Dunbar v. Albertson’s Inc.,702 and Keller v. Tuesday Morning, Inc.,703 the Court of Appeal held that the trial court did not abuse its discretion when it determined that differences in how specific managers allocated their time between subclasses, and affirmatively ruling that certification was required rather than remanding with instructions for trial court to exercise its discretion under the proper standard). 699 Id. 700 Id. at 327. 701 Id. at 339. 702 141 Cal. App. 4th 1422 (2006). 703 179 Cal. App. 4th 1389 (2009).
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