Litigating California Wage & Hour and Labor Code Class Actions

The most practical lesson to draw from these cases is to pay very close attention to the
assigned judge’s history with respect to class certification. An employer can usually learn
more about whether to settle the case or fight through class certification based upon the
judge’s general views on class certification than from any facts in the case.
C. Subclasses
In Sav-On, the California Supreme Court suggested that one way to handle individualized
issues without denying class certification altogether would be to divide the class into
subclasses. For example, if a key individualized factor that would affect a manager’s
exempt status is the size of the store managed, the trial court might divide the class into
multiple subclasses based on store size. When a court is considering whether to divide a
class into subclasses, the employer should be prepared to assert defenses that could
defeat certification as to those particular subclasses.
Employers may have typicality and adequacy arguments as to the subclass that do not
apply to a broader class. For example, if none of the named plaintiffs is a member of a
particular subclass, then the court may not certify the subclass because the plaintiff’s
claims would not typify those of the subclass. In addition, under federal class action law
that likely applies to 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
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representatives, but in different departments; “The fact that an employer classifies all or most of a particular class of
employees as exempt does not eliminate the need to make a factual determination as to whether class members are
actually performing similar duties”); see also Marlo v. United Parcel Service, 2011 WL 1598354 (9th Cir. April 28, 2011)
(affirming Judge Pregerson’s denial of class certification as to store managers because plaintiff could not devise a trial
plan by which classwide misclassification could be established by use of collective proof); Mora v. Big Lots Store, Inc.,
194 Cal. App. 4th 496 (2011) (affirming trial court’s denial of class certification as to store managers due to insufficient
evidence of a uniform corporate policy requiring store managers to engage primarily in non-managerial duties); Weigele
v. Fedex, 267 F.R.D. 614 (S.D. Cal. 2010) (Judge Sammartino decertified class of Dock Service Managers, holding that
the fact the managers were all uniformly trained and classified as exempt was insufficient to overcome individualized
issues concerning widespread differences in the manner in which the employees chose to manage, which affected the
actual duties they performed); Cruz v. Dollar Tree Stores, 2011 WL 2682967 (N.D. Cal. July 8, 2011) (Judge Conti
decertified a class of store managers, holding that the “glue” that gave rise to a common resolution was now missing
given that the majority of the class members testified that verification forms did not accurately reflect how class
members spent their time and therefore individual testimony would be required); Gales v. Winco Foods, 2011 WL
3794887, at *10-11 (N.D. Cal. Aug. 26, 2011) (Judge Breyer denied class certification based on predominance of
individualized issues as to whether assistant store managers spent their time performing primarily exempt or nonexempt
tasks).
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).
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