Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 141 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.732 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.733 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.’”734 D. Opt-In Classes Because of the broad language in Sav-On suggesting that trial courts should be innovative in fashioning class action procedures,735 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 Court736 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 732 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). 733 2012 WL 34483 (C.D. Cal. Jan. 4, 2012). 734 See also Miles v. Kirkland's Stores Inc., 89 F.4th 1217, 1225 (9th Cir. 2024) (holding that individualized issues predominated due to “the uneven enforcement of the policy,” which required the court “to embark on a time-intensive mission to figure out the individual circumstances of each proposed class member: which stores and managers enforced the bag check policy, what days this policy was enforced, which employees were subjected to them, and so on. This type of individualized analysis is not amenable to class treatment.”); 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). 735 Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 339 (2004). 736 128 Cal. App. 4th 1527 (2005) (modified without change in judgment, 129 Cal. App. 4th 1348 (2005)).
RkJQdWJsaXNoZXIy OTkwMTQ4