Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 155 certification based on plaintiff’s theory that work performed by employees at checkout registers reasonably permitted the use of seats.784 After the plaintiff presented her trial plan, however, Rite Aid successfully argued that the trial plan violated the company’s due process rights, as it failed to account for individualized issues concerning whether the nature of work for employees reasonably permitted the use of a suitable seat, and the trial court granted Rite Aid’s motion for decertification.785 But the Court of Appeal reversed, finding that the trial court’s decertification order was not based on a determination that the plaintiff’s theory of recovery was not amenable to common proof, but rather that the plaintiff’s theory of liability lacked merit.786 In reaching this decision, the Court of Appeal explained: We read Brinker to hold that, at the class certification stage, as long as the plaintiff’s posited theory of liability is amenable to resolution on a class-wide basis, the court should certify the action for class treatment even if the plaintiff’s theory is ultimately incorrect at its substantive level, because such an approach relieves the defendant of the jeopardy of serial class actions and, once the defendant demonstrates the posited theory is substantively flawed, the defendant “obtain[s] the preclusive benefits of such victories against an entire class and not just a named plaintiff.”787 These unwelcome decisions appear to lower the certification bar for plaintiffs pursuing class claims based on an allegation that an employer instituted an unlawful policy. Employers have often defeated class certification by demonstrating that an alleged unlawful policy was applied so variably that individualized questions predominated over the common fact that the same policy applied to all employees.788 These cases hold that class certification may be granted solely upon the basis that an employer's written policy violates the law, regardless of whether the unlawful policy was actually—or even potentially—uniformly applied to the class.789 Indeed, under this authority 784 Hall v. Rite Aid Corp., 226 Cal. App. 4th 278, 283 (2014). 785 Id. at 284. 786 Id. at 292. 787 Id. at 293. 788 See, e.g., Lampe v. Queen of the Valley Med. Ctr., 19 Cal. App. 5th 832, 841-42 (2018) (affirming denial of class certification; a “trial court should not grant class certification if individualized inquiries into job duties or other issues would predominate. This is true even if there is evidence of common job descriptions, common classification criteria, and common policies and procedures”); Payton v. CSI Elec. Contractors, Inc., 27 Cal. App. 5th 832, 842 (2018) (affirming denial of class certification; “But a class plaintiff’s theory of common proof must be more than wishful thinking; it must have a foundation in the evidence. … [P]laintiffs ‘may not simply allege’ a uniform policy or practice, but must ‘present substantial evidence that proving both the existence of the defendant’s uniform policy or practice and the alleged illegal effects of that policy or practice could be accomplished efficiently and manageably within a class setting.’ … Here, the trial court made findings contradicting Payton’s theory that CSI implemented a uniform policy denying a mid-afternoon rest break. Because these findings were supported by substantial evidence, we will not reverse them.”).See also Miles, 89 F.4th at 1224 (holding “‘the mere existence’ of a company policy—with little evidence that it was implemented or enforced uniformly—does “not constitute significant proof that a class of employees were subject to an unlawful practice”). 789 See also Ayala v. Antelope Valley Newspapers, Inc., 59 Cal. 4th 522, 533 (2014). There, the California Supreme Court held that the trial court had improperly denied certification in an independent contractor misclassification case by focusing on the difficulty in resolving, on a classwide basis, the substantive inquiry into how much control the employer had exercised over workers. The Supreme Court held that, at the certification stage, the proper inquiry was instead whether the scope of the employer’s right of control was susceptible to classwide proof, as opposed to how that control was actually exercised. Id. at 537. The Ninth Circuit went even further in Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014), affirming the district court’s decision to certify a class of claims adjusters alleging misclassification, on the grounds that there was a common question as to whether the class had worked unpaid overtime as a result of the employer’s “unofficial policy of discouraging reporting of such overtime,” even though Allstate had an official, written overtime policy that was entirely lawful. Id. at 1165-66. This holding would seem to be at odds with the Supreme Court’s decisions in Wal-
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