Litigating California Wage & Hour and Labor Code Class Actions

developments in this aspect of the law concerning class action certification procedures
have significantly bolstered defendants’ ability to defeat class certification.
B. Class Certification in Exempt Misclassification Cases
It is well established that “class actions will not be permitted where there are diverse factual
issues to be resolved, despite the existence of common questions.” 357 In the 2003 decision
Lockheed Martin Corp. v. Superior Court, 358 the California Supreme Court explained the
plaintiffs’ burden in moving for class certification:
Plaintiffs’ burden on moving for class certification, however, is not merely to show
that some common issues exist, but, rather, to place substantial evidence in the
record that common issues predominate. As we previously have explained, this
means “each member must not be required to individually litigate numerous and
substantial questions to determine his [or her] right to recover following the class
judgment; and the issues which may be jointly tried, when compared to those
requiring separate adjudication, must be sufficiently numerous and substantial to
make the class action advantageous to the judicial process and to the
litigants.” 359
The executive exemption has the potential to raise inherently individualized issues that are
not consistent with class treatment as outlined in the Lockheed case. 360 The Wage Orders
caution that:
The work actually performed by the employee during the course of the work
week must, first and foremost, be examined and the amount of time the
employee spends on such work, together with the employer’s realistic
357
358
359
360
order to envision the form that a trial on those issues would take”); In re Coordinated Pretrial Proceedings in Petroleum
Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir. 1982) (affirming denial of class certification, where “any theory on
which [plaintiffs] might rely [to prove the allegations of the complaint] would raise predominantly individual questions”).
Clausing v. San Francisco Unified Sch. Dist., 221 Cal. App. 3d 1224, 1233 (1990).
29 Cal. 4th 1096 (2003).
Id. at 1108 (2003); see also Newell v. State Farm Gen. Ins. Co., 118 Cal. App. 4th 1094 (2004) (class certification
inappropriate even though insurer had uniform policy for evaluating earthquake claims, because individual liability for
each policy holder would require examination of numerous individualized factors); Frieman v. San Rafael Rock Quarry,
116 Cal. App. 4th 29, 40-41 (2004) (class certification denied for nuisance claims against a quarry arising from blasting
noise where liability varied from one homeowner to another based on a “myriad of different factors”).
In Lockheed, a medical monitoring case, the California Supreme Court ultimately reversed the trial court’s ruling
granting class certification because “[t]he questions respecting each individual class member’s right to recover that
would remain following any class judgment appear so numerous and substantial as to render any efficiencies attainable
through joint trial of common issues insufficient, as a matter of law, to make a class action certified on such a basis
advantageous to the judicial process and the litigants.” Lockheed, 29 Cal. 4th at 1111.
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 76