Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 139 California law as well, numerosity must be met as to each subclass. Thus, “carving up the class” may result in certain subclasses being too small to warrant certification.711 Similarly, employers may argue that the “commonality“ element is missing, thereby potentially avoiding the creation of a sub-class. Seyfarth Shaw successfully defeated class certification in Hughes v. WinCo Foods by advancing such an argument.712 In Hughes, plaintiff brought a class action alleging that defendant failed to comply with California law with respect to providing meal and rest breaks. Plaintiff asserted that the commonality requirement was satisfied due to the store-wide policy of requiring employees to obtain management approval before going on a meal break. The court rejected that argument, explaining that the decision-making as to when employees took breaks varied from store to store and department to department. The court also concluded that the wide variation among employees even within each department would require “hundreds or thousands of ‘mini trials.’”713 D. Opt-In Classes Because of the broad language in Sav-On suggesting that trial courts should be innovative in fashioning class action procedures,714 some commentators opined that Sav-On was approving the trial court’s ability to certify an “opt-in“ class action, modeled after the procedure employed in FLSA and Age Discrimination in Employment Act (“ADEA”) collective actions. In 2005, however, the Court of Appeal in Hypertouch, Inc. v. Superior Court715 barred trial courts from certifying opt-in classes. In an “opt-in” class action, employees participate in the action only if they “opt in” by signing a form. Any judgment obtained in the decision binds only those individuals who opted in. Although this procedure limits the number of class members bound by a decision, employers generally like it because it reduces the number of employees offered a recovery, and because those employees who elect not to opt in usually lack interest in the litigation and are unlikely to sue later. 711 See Betts v. Reliable Collection Agency, 659 F.2d 1000, 1005 (9th Cir. 1981) (“Each subclass must independently meet the requirements of Rule 23 for the maintenance of a class action, ... [and as] a practical matter, the litigation as to each subclass is treated as a separate lawsuit.”); Andrews v. Bechtel Power Corp., 780 F.2d 124, 132 (1st Cir. 1985) (denying certification of a subclass of three people because it had too few members); see also Carabini v. Superior Court, 26 Cal. App. 4th 239, 242-43 (1994) (California courts should look to precedent arising under federal class action law for guidance as to unsettled areas of California law). 712 2012 WL 34483 (C.D. Cal. Jan. 4, 2012). 713 See also Castillo v. Bank of America, 980 F.3d 723, 731-33 (9th Cir. 2020) (holding that because plaintiff did not provide a common method of proof to determine liability, determining liability for all class members would require individualized inquiries as to which class members were caused to work off the clock); Sotelo v. Medianews Group, Inc., 207 Cal. App. 4th 639, 650-51 (2012) (affirming trial court’s denial of certification for class of newspaper carriers and finding no error for refusing to certify subclass, where proposed subclass failed to meet other class certification requirements of predominance of common issues of law and fact); Hadjavi v. CVS Pharmacy, Inc., 2011 WL 3240763 (C.D. Cal. July 25, 2011) (denying class certification of overtime, meal and rest period claims of nonexempt pharmacy employees and holding that the allegation that workload prohibited breaks was not enough to justify certification). 714 Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 339 (2004). 715 128 Cal. App. 4th 1527 (2005) (modified without change in judgment, 129 Cal. App. 4th 1348 (2005)).
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