154 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com Indeed, under this authority plaintiffs’ mere allegations that a policy did not exist may now be enough to show that there is commonality sufficient to proceed with class treatment of their claims. It remains to be seen how courts that follow this approach will handle these cases when they actually go to trial and it becomes apparent that individualized application of the policies makes them extraordinarily difficult, if not impossible, to adjudicate on a class-wide basis, while respecting the defendant’s right to due process. Recognizing these issues, some courts have taken a different view. For example, in Cirrincione v. American Scissor Lift, Inc.769, a Court of Appeal affirmed the trial court’s denial of class certification of rounding and meal period claims where the plaintiff based his certification argument on the absence of uniform, written policies. The Court of Appeal held that “[s]imply alleging the existence of a uniform policy or practice (or unlawful lack of a policy) is not enough to establish predominance of common questions required for class certification . . . The alleged unlawful policy (or unlawful lack of a policy) must be a means to establish liability on a class-wide basis. A plaintiff's theory of common proof ‘must have a foundation in the evidence.’” Based on this standard, the court affirmed denial of certification of the rounding claim, which was based solely on the lack of a uniform, written rounding policy, and of the meal period claim, which was based on lack of a uniform, written meal break policy and the absence of meal period records.770 I. Relitigation of Class Certification Denials Litigation through class certification can be tremendously expensive for employers. The primary justification for the expenditure of litigating class certification is that if the employer persuades a court to deny class certification, it is therefore established that employees in the putative class must come forward and litigate their claims individually (or through a joinder action). But what if another attorney finds another class representative, and asserts the same class action claims in a different lawsuit? Given the broad discretion that trial courts have to decide certification, class action plaintiffs’ lawyers have an incentive to try their luck again in a different jurisdiction. In Alvarez v. May Department Stores,771 the Court of Appeal limited an attorney’s ability to continually relitigate class certification of the same proposed class.772 The plaintiffs’ counsel first filed an action in Los Angeles in 1997. In 1998, counsel moved for class certification for a putative class of store managers and the motion was denied. 769 73 Cal. App. 5th 619, 637 (2021) (quoting Payton v CSI Electrical Contractors, Inc. 27 Cal App. 5th 832, 842 (2018)) (internal citations omitted). 770 With respect to the meal period claim, the court held that a plaintiff must show more than a mere absence of recorded meal breaks to establish a uniform claim: “[W]e find no merit in plaintiff's contention that reversal is required because the trial court incorrectly assumed that time records showing no meal periods were taken, or noncompliant meal periods, are insufficient to establish a prima facie case of liability. Where an employer fails to provide time records showing that a meal break was taken, a rebuttable presumption arises that the employee was not offered such a break. In that case, an employer's claim that a break was in fact offered but the employee declined it, is an affirmative defense that the employer must prove. . . Here, the court determined that individual issues arising from ASL's affirmative defense of waiver and other factors precluded certification. That decision was within the court's discretion.” Id. at 642-43 (citations omitted). 771 143 Cal. App. 4th 1223 (2006). 772 A similar conclusion was drawn by the Seventh Circuit in In re Bridgestone/Firestone, Inc., Tires Products Liab. Litig., 333 F.3d 763 (7th Cir. 2003), abrogated by Smith v. Bayer Corp., 564 U.S. 299 (2011).
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