Union Bank Wage and Hour Cases CA2/4

Filed 10/9/20 Union Bank Wage and Hour Cases CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

UNION BANK WAGE AND HOUR B295835
CASES (Coordinated)
(Los Angeles County
TIMOTHY BEATY, Super. Ct. Nos. BC596544 JCCP4866)

Plaintiff and Appellant,

v.

UNION BANK N.A. et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of
Los Angeles County, Ann I. Jones, Judge. Affirmed.
Matern Law Group, Matthew J. Matern, Andrew J.
Sokolowski and Tagore O. Subramaniam for Plaintiff and
Appellant.
 Sheppard, Mullin, Richter & Hampton, Derek R. Havel,
Matthew A. Tobias, Hilary A. Habib and Natasha L. Domek for
Defendants and Respondents.

INTRODUCTION

Plaintiffs and appellants Timothy Beaty and Natasha Cruz
separately filed class action lawsuits asserting wage and hour
claims against their former employer, defendant and respondent
MUFG Union Bank, N.A., formerly known as Union Bank, N.A.
(Union Bank). After their actions were coordinated, plaintiffs
sought to certify an overarching class of all non-exempt
employees who worked at defendant’s California call centers at
any time between October 2, 2011 and the date of class
certification. Plaintiffs also sought to certify several subclasses of
non-exempt employees; five of those subclasses are at issue here.
The “Minimum Wage and Overtime” subclass included
customer service representatives (CSRs) allegedly subject to a
policy denying them pay for time they spent logging into and out
of their computers. The “On-Premises Rest Period” subclass
included CSRs allegedly subject to a policy prohibiting them from
leaving the premises during their rest periods. The “Third Rest
Period” and “Second Meal Period” subclasses included CSRs
allegedly subject to policies denying them a third rest period and
second meal period during shifts exceeding 10 hours. Finally, the
“Derivative Claims” subclass included all CSRs; plaintiffs alleged
defendants would be liable to this subclass if any of plaintiffs’
other theories prevailed.
The trial court denied class certification. It concluded that
plaintiffs failed to carry their burden of demonstrating a well-
defined community of interest because individual questions

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predominated as to each of the substantive subclasses, plaintiffs
were not typical of the Third Rest Period and Second Meal Period
subclasses, and plaintiffs were not adequate representatives of all
three meal and rest period subclasses. The trial court further
concluded that plaintiffs failed to demonstrate that a class action
was a superior and manageable means of adjudicating their
claims.
Plaintiffs contend the trial court erred in declining to
certify their proposed subclasses. They contend the trial court
erroneously concluded there was no substantial evidence of a
uniform policy requiring off-the-clock work by the Minimum
Wage and Overtime Subclass, disregarded their policy-based
theories of liability for the rest and meal period subclasses,
erroneously concluded that plaintiffs were not typical or adequate
representatives for the rest and meal period subclasses, and
erred in rejecting their proposed trial plan as unmanageable.
We affirm. Although the trial court erred in connection
with some of its predominance and adequacy determinations, its
typicality finding was appropriate. Additionally, the trial court’s
conclusion that plaintiffs failed to demonstrate that their claims
and defenses thereto could be managed efficiently at trial was
supported by the record and well within the trial court’s
discretion.
FACTUAL BACKGROUND
Defendant is a bank that serves individual and business
customers. Defendant formerly operated customer service call
centers in Brea and Monterey Park; it relocated those call centers
outside of California in approximately June 2014. Plaintiff
Timothy Beaty worked as a CSR at the call centers between 2007
and January 4, 2013. Plaintiff Natasha Cruz worked as a CSR

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and online banking specialist at the call centers beginning in
November 2005, and ended her career with Union Bank as a
senior teller in Tehachapi on July 5, 2013.
CSRs who worked in the call centers were responsible for
taking inbound calls from Union Bank customers. CSRs used
computers and at least five different software programs to
perform their duties; they had to log in to the computers and the
programs at the beginning of their shifts. One of the software
programs, Softphone, was used to route, handle, and track
customer calls.
To ensure that calls were routed to available
representatives, CSRs updated their “agent states” in Softphone
throughout the day. Agent states included “Logged Out,” “Call
Inbound,” “Call Outbound,” “Wait for Next Call,” “Not Ready for
Next Call,” “Call on Hold,” and “After Call Work.” CSRs could
select a reason explaining at least some of the agent states from a
drop-down menu. Reasons included “Email,” “Training,”
“Meeting,” “Project,” “Coaching,” “System Problem,” “Break,” and
“Lunch.” All of a CSR’s daily log-ins, agent state updates, and
log-outs in Softphone were recorded in an “Agent States Report.”
Despite the detailed nature of the Agent States Reports,
defendant did not use them to record employees’ work time or for
other payroll purposes.1 Instead, defendant relied on separate
time cards, which were handwritten until approximately
December 14, 2013 and computerized thereafter. Employees

1One of defendant’s designated persons most
knowledgeable (PMK) testified that defendant considered a CSR’s
“adherence,” or “overall average of time you’re on your phone and
you’re adhering to your breaks and lunches and your schedule for
the day” as a performance metric.

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manually completed the time cards under both systems, and were
required to verify that their time entries were accurate.
Defendant submitted several declarations indicating there was
no such verification requirement for the entries made on
Softphone. The employees who provided those declarations
asserted they “did not need to track exactly which activity I was
engaged in or be as precise as I was when filling out my
timecards.”
Defendant had written policies addressing timekeeping and
punctuality. They will be discussed below, along with defendant’s
rest and meal period policies.
PROCEDURAL HISTORY
I. Complaints and Coordination
On October 2, 2015, plaintiff Beaty filed a wage and hour
class action against defendant in Los Angeles Superior Court.
Beaty’s complaint asserted nine causes of action against
defendant: failure to provide required meal periods, failure to
authorize and permit required rest breaks, failure to pay
overtime wages, failure to pay the minimum wage, failure to pay
all wages due to separating employees, failure to maintain
required records, failure to furnish accurate itemized wage
statements, failure to indemnify employees for necessary
expenditures incurred in the discharge of their duties, and unfair
and unlawful business practices. Beaty filed a first amended
complaint asserting the same causes of action on January 29,
2016.
On October 8, 2015, six days after Beaty filed his original
complaint, plaintiff Cruz filed a similar class action complaint
against defendant in San Francisco Superior Court. She asserted
five causes of action: failure to pay wages owed, failure to pay

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overtime compensation, failure to maintain accurate records and
provide itemized wage statements, failure to pay all wages due
upon termination, and unfair and unlawful business practices.
Defendant filed a petition to coordinate the cases on March
21, 2016. The Judicial Council granted the petition, and the
coordinated proceeding was assigned to Los Angeles Superior
Court in August 2016.
II. Motion for Class Certification
Plaintiffs jointly moved for class certification on March 2,
2018. They sought to certify a class of “All non-exempt employees
who worked at one of Defendants’[2] call centers in California at
any time between October 2, 2011 and the date of class
certification, as determined by Defendants’ records.” Plaintiffs
also sought to certify seven subclasses, including the five at issue
in this appeal. Defendant opposed the motion.
A. Minimum Wage and Overtime Subclass
1. Plaintiffs’ Arguments and Evidence in Support
Plaintiffs alleged defendant violated Labor Code sections
510 and 1194 by failing to pay class members for all hours
worked. Specifically, they alleged they were required to be logged
in to their computers and software programs and ready to take
calls the moment their shifts started, which necessitated logging
in prior to the start of their shifts. Similarly, they alleged they
were required to remain ready to take calls until their shifts
ended, and therefore had to log out of their computers and
software programs after their shifts ended. Plaintiffs alleged they

2Plaintiffsnamed MUFG Union Bank, N.A. and Union
Bank, N.A. as separate entities and defendants. They
accordingly use the plural “defendants” in their class certification
papers.

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were not paid for the time they spent logging in and logging out
of their computer systems, which defendant’s PMK testified was
“actually work time.” Plaintiffs sought to certify a Minimum
Wage and Overtime subclass of “All non-exempt employees who
worked as a customer service representative at one of
Defendants’ call centers in California at any time between
October 2, 2011 and the date of class certification, as determined
from Defendants’ records.”
To support certification of this class, plaintiffs cited the
“Attendance & Punctuality” policy contained in defendant’s 2006
Employee Handbook. It stated in relevant part: “Good
attendance and punctuality are expected of employees at Union
Bank. You are responsible for adhering to your scheduled hours.
Frequent or excessive absences or tardiness create a hardship for
your branch or department and should be avoided. Nonexempt
employees should arrive ready for work at their scheduled
starting time, return from lunch and breaks promptly, and work
until the work period ends.” In connection with a subclass not
currently at issue, and in their appellate briefing concerning this
subclass, plaintiffs also pointed to a document entitled
“Scheduling” from the “RCS New Hire Orientation.” Plaintiffs
did not identify the “Scheduling” document as supportive of this
subclass in their motion for class certification, and the trial court
did not consider it, so we do not discuss it here.
Plaintiffs presented declarations and deposition testimony
from Beaty and Cruz, both of whom testified that they needed to
arrive “well before” the start of their shifts to log in to their
computers and software programs and “have everything ready to
go.” Cruz estimated she had to arrive “between three to five
minutes early,” while Beaty estimated he spent “between five and

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seven minutes” each day logging in to his computer prior to his
scheduled work time. Beaty further testified that, during “the
middle” of his tenure with Union Bank, his manager told him
something to the effect of, “If you’re on time, you’re late. If you’re
early, you’re just on time.” Plaintiffs characterized that
statement as a summary of defendant’s policy.
Putative class member Iliana Mena stated in a declaration
that she was asked “every day” to “perform work before logging in
to my computer at the beginning of a shift, and after logging out
at the end of a shift,” including “resolving online banking issues,
wires, and assisting other employees.” Mena also stated that she
“was required to remain working until my scheduled shift end
time,” then had to spend approximately 10 minutes each day
shutting down her computer after she logged out. Plaintiffs
asserted that Beaty and Cruz gave similar testimony about
logging out of their computers, but the declarations and
deposition excerpts they cited do not support this assertion.
Plaintiffs asserted that the Agent States Reports would
confirm they logged into and out of their computers outside of
their scheduled work hours and therefore performed off-the-clock
work. Plaintiffs’ expert, Eric Lietzow compared the Agent States
Reports and time cards of five employees selected by plaintiffs’
counsel, including Cruz, and found disparities between the Agent
States Reports and time cards in many of the 1,626 total shifts he
analyzed. Plaintiffs asserted that Lietzow could perform the
same analysis across all class members to determine the amount
of unpaid minimum wages and overtime.

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 2. Defendant’s Arguments and Evidence in
Opposition
Defendant contended the Minimum Wage and Overtime
subclass was not suitable for class treatment because its policies
and training materials required accurate recording of time and
prohibited off-the-clock work. It asserted that these “clear,
written policies” left plaintiffs “to speculate that there was a
clandestine practice—somehow uniformly applied by scores of
unidentified supervisors at two separate call centers—to
disregard policies and secretly force employees to work off the
clock.” Defendant further argued that individual questions
predominated, because plaintiffs would have to show that
particular supervisors instructed particular employees to work
off-the-clock, whether each employee in fact worked off-the-clock,
whether any off-the-clock work was de minimis, and whether
defendant was aware or should have been aware of particular off-
the-clock work.
In support of these contentions, defendant offered
declaration testimony from both management and potential class
members asserting that it had a policy of requiring CSRs to
accurately record all of their work hours, including the start and
end times of their shifts. It further submitted evidence that it
had policies “distributed at orientation and available on Union
Bank’s intranet” that strictly prohibited off-the-clock work and
defined hours worked to include “any time spent on electronic
devices for business purposes.” Defendant provided the court
with wage and hour training materials CSRs were required to
complete, and testimony of class members indicating that they
understood it was against defendant’s policy to work off the clock.
Defendant specifically pointed to Cruz’s deposition, during which

9
she testified that she understood that she was required to
accurately record all time worked, including start and stop times,
that hours worked included “all time that you are required to be
on duty or required to be on your employer’s property or at a
certain place of work,” and that “[h]ours worked can also include
all time outside your normal shift when you are allowed to
actually perform work for your employer.”
Defendant also contended the Agent States Reports were
unreliable and should not be considered because they did not
show the time CSRs actually worked and CSRs were not required
to be precise when selecting agent states in Softphone. As
examples, defendant pointed to Agent States Reports containing
egregious errors, such as 13 meal or rest period agent states in a
single shift, “Lunch” states lasting several hours, and multiple
entries showing beginnings of a single shift. Defendant further
contended that plaintiffs’ expert analysis of the Agent States
Reports was “fatally flawed” due to the small sample of only five
of the approximately 180 potential class members. In the
alternative, defendant presented its own expert analysis, by
Stefan Boedeker, which compared 10,025 Agent States reports
and time cards. Boedeker’s analysis showed that 78.2 percent of
all Agent States Reports reflected a log-in time at or after the
time written on an employee’s time card, and 56.7 percent
reflected a log-out time before or at the time written on the time
card.
3. Plaintiffs’ Reply
Plaintiffs disputed defendant’s characterization of their
theory of liability as speculation of a clandestine practice of
requiring off-the-clock work. Plaintiffs asserted that the
“‘practice’ of requiring or, at minimum encouraging, off-the-clock
work was not clandestine. . . . Defendants’ written policy

10
required that employees adhere to their scheduled hours, which
pressured employees to work off-the-clock so that their time
records reflected their schedule instead of their actual working
time.” They further asserted that there was “a confluence of
pressures from Defendants’ various policies and directives that
exerted pressure to work off the clock and that resulted in off-the-
clock work about which Defendants were aware.”
B. On-Premises Rest Period Subclass
1. Plaintiffs’ Arguments and Evidence in Support
Plaintiffs alleged that defendant violated Labor Code
section 226.7, subdivision (c) by restricting how they spent their
rest period time. Plaintiffs relied on a document entitled
“Completing the Employee Time Card” from the “RCS New Hire
Orientation” materials dated 4/28/17.3 It stated in relevant part,
“It is not permissible to leave the bank premises during breaks.”
Plaintiffs asserted “[t]his is consistent with all other written
polices, which fail to advise employees that they can leave the
premises for their rest breaks.” They also pointed to deposition
testimony from one of defendant’s PMKs, who stated, “I didn’t
know of anybody who left the call center. It’s only 15 minutes
during the break[;] I saw people go outside and smoke a cigarette.
I never observed anybody leaving.” Plaintiff Beaty testified that
he did “not recall being authorized to leave the company premises
during my rest break,” and putative class member Mena testified
that she “was not allowed to leave the premises during my rest
breaks.”

3Defendant’s PMK agreed during her deposition that “as far
as the policy for completing the timecard that you’re aware of,
[this was] the policy that’s been in effect between October 2011
and the present.”

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 Plaintiffs asserted that the question of whether defendant’s
policy was lawful was “a common one susceptible to class
treatment.” They sought to certify an On-Premises Rest Period
subclass of “All non-exempt employees who worked as a customer
service representative at one of Defendants’ call centers in
California at any time between October 2, 2011 and the date of
class certification, and worked at least one shift of more than
three and one-half hours, as determined by Defendants’ records.”
2. Defendant’s Arguments and Evidence in
Opposition
Defendant argued that plaintiffs failed to establish that it
had a uniform policy of prohibiting CSRs from leaving its
premises during rest breaks. It disputed that the orientation
document plaintiffs relied on was a policy document,4 and further
contended that the document was not distributed to all class
members. Defendant contended that the rest period policy in its
Human Resources Manual did not require CSRs to stay on the
premises, and proffered testimony from several supervisors and
CSRs that CSRs were allowed to leave during their rest periods.
3. Plaintiffs’ Reply
Plaintiffs contended that defendant impermissibly
challenged the merits of their On-Premises Rest Period claim.
They further contended that the issue was “inherently certifiable”
and could be resolved via motions practice.

4Notably, in support of the Third Rest Period subclass,
plaintiffs proffered deposition testimony from defendant’s PMK
that “any policy that Defendants had would be in writing in
either the human resources manual guide, the employee policy
guide, or the employee handbook.” Defendant pointed to
declaration testimony from the same PMK here “confirm[ing] this
document is not a policy document.”

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 C. Third Rest Period Subclass
1. Plaintiffs’ Arguments and Evidence in Support
Plaintiffs alleged that defendant violated Industrial
Welfare Commission Wage Order No. 4 (Cal. Code Regs., tit. 8,
§ 11040, subd. 12(A)) because it lacked a policy requiring a third
rest period for shifts that exceeded 10 hours. They contended
that defendant’s policies regarding rest periods did not provide
for a third rest period during shifts exceeding 10 hours and failed
to give full effect to the language of Wage Order No. 4 requiring a
rest period for each four hours worked or “major fraction” thereof.
Plaintiffs pointed to the 2006 Employee Handbook, which
provided, “Nonexempt employees are required to take a break for
each four hours they work if scheduled to work at least 3½ hours.
This will be paid time.” Plaintiffs also cited defendant’s Human
Resources Manual, which they acknowledged “track[s] some of
the language of the Wage Order.” Specifically, it provided,
“Nonexempt employees must be permitted to take a paid 15
minute rest break for every 4 hours or major fraction thereof (a
major fraction is ordinarily considered more than 2 hours worked
within a 4 hour period). As far as it is practical, the rest period
should be in the middle of each 4 hour work period (or major
fraction thereof). Exceptions to the rest period requirements are
allowed only if the total daily time worked is less than 3 and one-
half hours.”
However, plaintiffs pointed out that the manual also
contained a chart stating that employees working “More than 10,
but less than 12” hours were only entitled to two paid rest
periods. In addition, putative class member Mena stated in her
declaration that she “often was not permitted to take a . . . third

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ten-minute rest break” when she worked a shift exceeding 10
hours and was unaware she was entitled to one.
Plaintiffs argued that the effect of the policy was
susceptible to common proof: the Agent States Reports, which
include employee-inputted reasons of “Break.” Plaintiffs’ expert
Richard Drogin, Ph.D., analyzed Agent States Reports from a 20
percent class sample selected by defendant. He found that 325 of
the 15,305 shifts documented in the sample Agent States Reports
exceeded 10 hours. Of those, 243, or 78 percent, did not contain a
third “Break” entry.
Based on this evidence, plaintiffs sought to certify a “Third
Rest Period Subclass” of “All non-exempt employees who worked
as a customer service representative at one of Defendants’ call
centers in California at any time between October 2, 2011 and
the date of class certification, and worked at least one shift of
more than ten hours, as determined from Defendants’ records.”
2. Defendant’s Arguments and Evidence in
Opposition
Defendant argued that plaintiffs failed to demonstrate that
it had a policy of denying third rest periods to CSRs who worked
shifts longer than 10 hours. Defendant asserted that the chart in
its Human Resources Manual contained “a typo,” and emphasized
that the actual text of the policy correctly stated that employees
were entitled to one rest period for every four hours of work or
major fraction thereof. Defendant also argued that the Wage
Order posted at its call centers stated the correct policy, as did
the wage and hour training that CSRs, including plaintiffs,
completed.
Defendant presented declaration evidence from CSRs who
stated that they understood defendant’s rest period policy and

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took their rest periods. To the extent any class members may
have missed rest periods, defendant asserted that individualized
inquiry would be necessary to show who missed rest periods,
when, why, and whether the CSR submitted a request for a
compensatory rest period premium.
3. Plaintiffs’ Reply
Plaintiffs reiterated that defendant’s policy—the chart in
the Human Resources Manual—was facially defective and in
conflict with the Wage Order defendant purportedly posted.
D. Second Meal Period Subclass
1. Plaintiffs’ Arguments and Evidence in Support
Plaintiffs alleged that defendant violated Labor Code
section 512 by failing to have a policy providing nonexempt
employees who worked shifts longer than 10 hours with a second
30-minute meal period. They asserted that the 2006 Employee
Handbook, which states that “[e]mployees working more than
five hours must also take a meal period break of at least 30
minutes which is unpaid time,” “fails to include any language
indicating that employees are eligible for a second meal period for
shifts longer than ten hours.”5
Expert Drogin “analyzed Defendants’ Agent States Reports
regarding ‘away states’ for second meal periods,” an analysis
similar to the one he used on the same sample in connection with

5Plaintiffs ignored the Human Resources Manual, an
excerpt of which they provided in support of the Third Rest
Period subclass explicitly stated, “Nonexempt employees will
receive a second unpaid meal period of at least 30 minutes if the
employee works more than 10 hours,” and indicated the same in
a chart. Defendant cited this portion of the Human Resources
Manual in its opposition, but the trial court did not mention it in
its analysis of the Second Meal Period subclass.

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the Third Rest Period subclass. Drogin found that 324 of the 325
sample shifts that exceeded 10 hours did not have an Agent
States Report entry documenting a second “Lunch.”
Based on this evidence, plaintiffs sought to certify a Second
Meal Period subclass consisting of “All non-exempt employees
who worked as a customer service representative at one of
Defendants’ call centers in California at any time between
October 2, 2011 and the date of class certification, and worked at
least one shift of more than ten hours, as determined from
Defendants’ records.”
2. Defendant’s Arguments and Evidence in
Opposition
Defendant contended plaintiffs failed to carry their burden
of establishing a common question regarding the Second Meal
Period subclass, because its polices expressly state that
employees who work a 10-hour shift are entitled to a second meal
period. It further argued that expert Drogin’s analysis was
flawed due to his reliance on the Agent States Reports and
failure to account for meal period waivers. Defendant proffered
testimony expert Boedeker, who analyzed over 20,000 shifts
using time card data and considered meal period waivers; he
found only 11 violations. Defendant additionally proffered
testimony from several CSRs, who stated that they were given
the opportunity to take a second meal period but chose not to do
so in order to leave work earlier. Defendant argued that the meal
period waivers established an affirmative defense, and that
individualized inquiry into each CSR’s waiver would be required.
3. Plaintiffs’ Reply
Plaintiffs rejected defendant’s contention that its
affirmative defense of meal period waivers necessitated

16
unmanageable individualized inquiry. In plaintiffs’ view, the
affirmative defense “raises a single common question applicable
to all class members: did s/he sign a meal period waiver or not?”
E. Derivative Claims Subclass
Plaintiffs alleged that their claims for failure to pay all
wages to separating employees, wage statement violations, and
unfair business practices were derivative of their other
subclasses. That is, defendant could also be liable under Labor
Code sections 203 and 226, subdivision (a), or Business and
Professions Code section 17200 if plaintiffs successfully proved
liability on one of their other theories. They accordingly sought
to certify a Derivative Claims subclass of “All non-exempt
employees who worked as a customer service representative at
one of Defendants’ call centers in California at any time between
October 2, 2011 and the date of class certification, as determined
from Defendants’ records.”
Defendant argued that the Derivative Claims subclass
should not be certified because plaintiffs’ primary claims were not
amenable to class treatment.
F. Other Class Certification Requirements
1. Typicality and Adequacy
Plaintiffs contended their claims were typical of those of
the class because they were “based on the same legal theories and
arise out of Defendants’ same unlawful policies and practices,”
and plaintiffs “suffered injuries typical of the class members.”
They also contended they satisfied the adequacy requirement
because they were represented by well-qualified counsel and
their interests were not antagonistic to or in conflict with those of
other class members.

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 Defendant contended that plaintiffs failed to satisfy the
typicality and adequacy requirements for class certification. It
argued that plaintiffs Beaty and Cruz were not typical of the
Third Rest Period and Second Meal Period subclasses, because
their time cards showed that they never worked a shift longer
than 10 hours. Defendant also argued that plaintiffs were not
adequate representatives of the class because some class
members were “lead” CSRs responsible for ensuring that other
CSRs were given their meal and rest periods, and “[t]his creates
irreconcilable intra-class conflicts that preclude certification.”
In reply, plaintiffs argued that plaintiff Beaty was typical
of the Third Rest Period and Second Meal Period subclasses,
because one of his time cards showed he worked a shift that was
either 10 hours or 12 hours and, under either scenario, he worked
more than 10 hours due to the off-the-clock time he spent logging
into and out of his computer. They also contended they were
adequate representatives because their theories of liability on the
meal and rest period claims turned on corporate policies, not
decisions made by lead CSRs.
2. Trial Plan
At the certification stage, plaintiffs using statistical
evidence also must prepare a trial plan addressing the use of
statistical evidence and demonstrating how individual issues can
be managed at trial. (Duran v. U.S. Bank National Association
(2014) 59 Cal.4th 1, 31-32 (Duran).) Plaintiffs filed a 10-page
trial plan concurrently with their motion for class certification.
The first step of plaintiffs’ plan was summary adjudication of the
liability questions presented by each of their subclasses. If
material factual disputes prevented summary adjudication,
plaintiffs proposed that liability and damages for each subclass

18
be adjudicated at trial as follows. For the Minimum Wage and
Overtime subclass, plaintiffs proposed calling as witnesses two of
defendant’s PMKs, “as well as Plaintiffs and other class members
to establish Defendants’ time keeping practices.” Then, to
determine liability and damages, “a jury need only analyze the
shift start/end times . . . and compare them with the activity
tracked through Softphone on the Agent States Reports. Where
the Agent States Reports evidence that an employee was punched
in to the Softphone system before or after the start and end times
on their time cards, this would reflect uncompensated time. . . .
Given a full set of data before trial—including time cards and
Agent States Reports for all Class members—Plaintiffs’ expert
would be able to measure total uncompensated time.” For the
On-Premises Rest Period subclass, plaintiffs asserted that the
illegality of the policy itself would establish liability. They also
planned to elicit “testimony from Defendants’ witnesses” that
defendant did not pay rest period premiums, and asserted that
“Defendants’ time records can be easily analyzed to determine
which shifts qualify for one or more rest breaks and calculate
damages using payroll data . . . .”
Plaintiffs also asserted that defendant’s liability for the
Third Rest Period subclass could be determined by the facially
illegal chart in the Human Resources Manual. They contended
that Agent States Reports for “Break” entries, class member
testimony, and expert analysis could confirm that class members
who worked shifts of 10 hours or more were not provided with
third rest breaks. Plaintiffs made similar contentions with
respect to the Second Meal Period subclass: the policy failed to
provide a second meal period, and analysis of Agent States
Reports could confirm that and establish damages.

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 Plaintiffs’ trial plan did not mention affirmative defenses or
specify the identities of the class members or experts they
planned to call as witnesses. Plaintiffs estimated trial would last
“at least 10-15 days.”
Defendant contended that plaintiffs’ trial plan was
inadequate. It argued that the plan focused too much on the
possibility of summarily adjudicating liability issues before trial
and too little on how plaintiffs planned to manage the litigation
of issues at trial. Defendant further asserted that the plan was
“woefully vague,” failed to demonstrate how individual issues
would be managed, relied on flawed expert analyses, and violated
its due process rights by failing to account for affirmative
defenses.
III. Hearing and Ruling
The trial court heard the class certification motion on
December 19, 2018. It issued a lengthy written ruling denying
the motion the following day.
After finding that plaintiffs satisfied the numerosity and
ascertainability elements, which were not contested, the trial
court considered whether they carried their burden of
demonstrating a community of interest with respect to each of
the proposed subclasses. In all cases, it found they did not.
A. Minimum Wage and Overtime Subclass
The trial court described plaintiffs’ theory of liability as,
“Defendant failed to pay for all time worked, such as time spent
by CSRs booting up, logging on and off, and shutting down their
computers.” It summarized plaintiffs’ evidence, including the
policy regarding scheduled hours, the remark by Beaty’s
supervisor (“If you’re on time, you’re late. If you’re early, you’re
on time.”), and Lietzow’s expert analysis of five employees’ time

20
cards and Agent States Reports. The trial court then
summarized defendant’s evidence, including its policies requiring
accurate recording of time worked and testimonial evidence that
CSRs, including Cruz, “understood that they must record all
working time” and further understood that logging into and out
of their computers was work time.
The trial court concluded that individual questions
predominated as to this subclass, because there was “no
substantial evidence demonstrating that Defendant had a
uniform policy requiring CSRs to work off-the-clock before and/or
after their scheduled shifts. To show Defendant’s off-the-clock
liability, the trier of fact would have to conduct a CSR-by-CSR
inquiry to determine facts such as whether he/she performed off-
the-clock work, why he/she did not record the time given
Defendant’s policy requiring accurate recording of time, and
whether Defendant had actual or constructive knowledge that
he/she worked off-the-clock.” In a footnote, the court observed
that Beaty’s testimony about his supervisor’s remark “suggests
that supervisors communicate different instructions to their
respective supervisees.”
The court further stated that defendant argued that the
Agent States Reports were unreliable because Softphone was not
a timekeeping system and CSRs were not always precise when
using it. In the subsequent portion of its ruling addressing the
Second Meal Period Subclass, the court explicitly agreed the
Agent States Reports were unreliable.
B. On-Premises Rest Period Subclass
The trial court described plaintiffs’ theory of liability for the
On-Premises Rest Period Subclass as, “Plaintiffs contend that
Defendant exerted control over how employees spend their rest

21
break time.” It summarized their evidence, namely the
orientation document stating “It is not permissible to leave the
bank premises during breaks,” and PMK testimony that “I didn’t
know of anybody who left the call center” and “I never observed
anybody leaving” during rest periods.”
The court concluded that plaintiffs failed to provide
substantial evidence of a uniform policy prohibiting CSRs from
leaving call center premises during their rest periods. It
explained, “First, Plaintiffs have not presented evidence that the
orientation document containing that prohibition was distributed
or applied to all CSRs. Second, while it is true that [PMK]
Ortega testified that ‘[she] didn’t know of anybody who left the
call center’ and ‘[she] never observed anybody leaving,’ she did
not testify that Defendant had a policy against leaving the
premises. In fact, when asked if she ‘kn[e]w one way or another
whether there was a rule as to whether you could or could not
leave during rest breaks,’ Ortega responded, ‘No.’ . . . . Third,
while Plaintiffs present declarations from CSRs stating that they
were not allowed to leave the premises, Defendant presents
declarations from CSRs stating the opposite, requiring a CSR-by-
CSR inquiry as to what rest break policy was communicated to
him/her and whether he/she did or did not leave the premises
during his/her rest breaks.” For these reasons, the court found
that individual questions predominated.
C. Third Rest Period Subclass
With respect to this subclass, the court stated “Plaintiffs
contend that none of Defendant’s written materials (i.e., Human
Resources Manual, employee policy guide, and employee
handbook) contain a provision for a third rest period. It is
Plaintiffs’ position that the absence of a policy ‘fails to give full

22
effect to the “major fraction” language’” of Wage Order No. 4. The
court further stated that plaintiffs argued the unlawful policy
was subject to common proof, namely the Agent States Reports
and expert Drogin’s analysis thereof finding that 243 of 325 shifts
over 10 hours lacked a third rest period entry. The court then
summarized defendant’s argument that its policy was not facially
defective, and its evidence to that effect, declarations from CSRs
and supervisors and the wage and hour training materials.
The court concluded the “alleged unlawful policy of [not]
providing a third rest period to CSRs who work a shift of over ten
hours is not susceptible to common proof.” It explained: “even
assuming, arguendo, that its rest period policy was facially
defective, Defendant correctly contends that there is no
substantial evidence of a universal practice of denying third rest
periods. Indeed, Defendant presents evidence (contrary to
Plaintiffs’ evidence) that it provided CSRs who worked a shift of
over 10 hours a third rest period of 15 minutes in duration. …
Further, an individualized inquiry is necessary to determine
issues such as why a CSR missed a third rest period for each
particular occasion, whether he/she requested a rest period
premium, why he/she chose not to do so.”
D. Second Meal Period Subclass
The trial court summarized plaintiffs’ theory as to the
Second Meal Period subclass as, “Defendant lacks a policy
providing for a second meal period for CSRs who work shifts of
over ten hours.” It also summarized their evidence, including
Drogin’s analysis of the Agent States Reports showing that 99.7
percent of shifts longer than 10 hours did not reflect a second
meal period.

23
 The trial court rejected Drogin’s analysis on the bases that
the Agent States Reports were unreliable and that Drogin failed
to account for the possibility that an employee had waived the
second meal period. “By contrast,” the court noted, “Defendant’s
expert, who took into account the second meal period waivers
found at the bottom of employee timesheets, found only 11 meal
period violations out of 20,043 analyzed shifts.” The court further
determined that individualized inquiry would be necessary to
determine why a CSR missed a second meal period, because
defendant provided evidence that such breaks were offered, and
case law dictates that employers are not obligated to police meal
breaks to ensure that employees do not perform work during
them. “For these reasons,” the court concluded, “individual
questions predominate as to the Second Meal Period Subclass.”
E. Other Class Certification Requirements
In addition to ruling that individual issues predominated
each of plaintiffs’ proposed subclasses,6 the trial court addressed
the remaining class certification requirements. With respect to
typicality, the court agreed with defendant that plaintiffs Beaty
and Cruz were not typical of the Third Rest Period and Second
Meal Period subclasses because they did not work any shifts
exceeding 10 hours. The court was not persuaded by plaintiffs’
single time card showing Beaty had worked for either 10 or 12
hours, because “Beaty was responsible for ensuring accurate
recording of his time” and “[t]here are a multitude of conceivable
reasons for the 10-hour total” Beaty approved versus the 12
hours he recorded. It also rejected plaintiffs’ assertion that Beaty

6This includes the Derivative Claims subclass, which the
trial court found “not amenable to class certification” for “the
same reasons as the underlying claims.”

24
worked over 10 hours in any event because he had to log in to his
computer early, finding that “merely assumes that on that
particular date (11/29/12) Plaintiff Beaty did work-off-the-clock.”
The trial court further agreed with defendant that plaintiffs were
not adequate class representatives due to “the fact that some
CSRs were responsible for enforcing Defendant’s alleged illegal
meal and rest period policies and practices.”
The trial court considered manageability and rejected
plaintiffs’ trial plan as inadequate in five respects. First, the
court found that plaintiffs placed too much emphasis on “how the
issues could potentially be winnowed prior to trial . . . as opposed
to how Plaintiffs intend to manage the issues at trial.” Second, it
concluded that the plan failed to demonstrate how individualized
issues, including defendant’s affirmative defenses, would be
managed. Third, “to the extent Plaintiffs seek to rely upon the
Agent States Reports, Defendant has demonstrated the
unreliability of such reports,” which the court further found “do
not answer the individualized issues raised by Plaintiffs’ claims.”
Fourth, the court found that the trial plan failed to show how
defendant’s due process rights would be protected. “Plaintiffs’
failure to deal with the highly individualized nature of the
defenses in this case as part of a trial plan is fatal to its [sic]
claim of manageability.” Finally, the court concluded that
plaintiffs’ expert analyses were flawed in several respects,
including “the small number of Agent States Reports analyzed,”
and a lack of understanding of the Softphone system and Agent
States Reports.
The trial court summarized its ruling as follows: “for the
reasons that Plaintiffs have not shown predominance of common
questions, typicality as to the Second Meal Period Subclass and

25
the Third Rest Period Subclass, adequacy as to all the meal and
rest period claims, and superiority/manageability, the motion for
class certification is DENIED.”
Plaintiffs timely appealed under the death knell doctrine.
(See In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757.)
DISCUSSION
I. Legal Principles
A class action is a procedural device used to aggregate
claims when “the question is one of a common or general interest,
of many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court.” (Code Civ.
Proc., § 382.) “The party advocating class treatment must
demonstrate the existence of an ascertainable and sufficiently
numerous class, a well-defined community of interest, and
substantial benefits from certification that render proceeding as a
class superior to the alternatives.” (Brinker Restaurant Corp.
(2012) 53 Cal.4th 1004,1021 (Brinker).) “‘In turn, the
“community of interest requirement embodies three factors: (1)
predominant common questions of law or fact; (2) class
representatives with claims or defenses typical of the class; and
(3) class representatives who can adequately represent the
class.’” [Citation.]” (Ibid.) As the party seeking certification,
plaintiffs bear the burden of demonstrating all three community
of interest factors for each subclass. (Lockheed Martin Corp. v.
Superior Court (2003) 29 Cal.4th 1096, 1104 (Lockheed).)
To establish predominance, plaintiffs must “place
substantial evidence in the record that common issues
predominate.” (Lockheed, supra, 29 Cal.4th at p. 1108.) “‘[T]his
means “each member must not be required to individually litigate
numerous and substantial questions to determine his [or her]

26
right to recover following the class judgment; and the issues
which may be jointly tried, when compared with those requiring
separate adjudication, must be sufficiently numerous and
substantial to make the class action advantageous to the judicial
process and to the litigants.’” [Citation.]” (Ibid.) Whether
common questions predominate “will often depend upon
resolution of issues closely tied to the merits” of the claims, even
though the certification of a class is a procedural question that
generally does not turn on whether an action is legally or
factually meritorious. (Brinker, supra, 53 Cal.4th at p. 1023.) At
bottom, predominance is a factual question we review for
substantial evidence. (Id. at p. 1022.)
The second community of interest requirement, typicality,
refers to the nature of the class representative’s claim, not the
specific facts from which it arose or the specific relief sought.
(Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th
362, 375.) The purpose of the typicality requirement is to ensure
that the class representative’s interests align with those of the
broader class. (Ibid.) The test of typicality is whether the action
is based on conduct not unique to the named plaintiffs, whether
the other class members experienced and have been injured by
the same course of conduct as the named plaintiffs, and whether
the other class members suffered the same or similar injury as
the named plaintiffs. (Ibid.) The third requirement, adequacy, is
similar. Named plaintiffs adequately represent a class where
their interests are not in conflict with or antagonistic to those of
the class members they seek to represent. (Seastrom v. Neways
(2007) 149 Cal.App.4th 1496, 1502.)
“In certifying a class action, the court must also conclude
that litigation of individual issues, including those arising from

27
affirmative defenses, can be managed fairly and efficiently.”
(Duran, supra, 59 Cal.4th at p. 29.) “In wage and hour cases
where a party seeks class certification based on allegations that
the employer consistently imposed a uniform policy or de facto
practice on class members, the party must still demonstrate that
the illegal effects of this conduct can be proven efficiently and
manageably within a class setting.” (Ibid.; see also Brinker,
supra, 53 Cal.4th at p. 1033.) Manageability is a key inquiry in
determining whether a class action is a superior device for
resolving a controversy; it is “just as important as the existence of
common questions uniting the proposed class.” (Duran, supra, 59
Cal.4th at p. 29.)
“In reviewing a class certification order, our inquiry is
‘narrowly circumscribed.’” (Noel v. Thrifty Payless, Inc. (2019) 7
Cal.5th 955, 967 (Noel).) “‘“The decision to certify a class rests
squarely within the discretion of the trial court, and we afford
that decision great deference on appeal, reversing only for a
manifest abuse of discretion: ‘Because trial courts are ideally
situated to evaluate the efficiencies and practicalities of
permitting group action, they are afforded great discretion in
granting or denying certification.’ [Citation.] A certification
order generally will not be disturbed unless (1) it is unsupported
by substantial evidence, (2) it rests on improper criteria, or (3) it
rests on erroneous legal assumptions.”’ [Citation.] ‘Under this
standard, an order based upon improper criteria or incorrect
assumptions calls for reversal “‘even though there may be
substantial evidence to support the court's order.’”’” (Noel, at pp.
967-968, quoting Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
436 (Linder).) Similarly, class action management decisions are
also reviewed for abuse of discretion. (Duran, supra, 59 Cal.4th

28
at p. 49.) “We must ‘[p]resum[e] in favor of the certification order
. . . the existence of every fact the trial court could reasonably
deduce from the record. . . .’” (Brinker, supra, 53 Cal.4th at p.
1022.) However, in conducting our review, we examine the trial
court’s “actual reasons for granting or denying certification; if
they are erroneous, we must reverse, whether or not other
reasons not relied upon might have supported the ruling.” (Ayala
v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530.)
II. Predominance Rulings
A. Minimum Wage and Overtime Subclass
1. Scope of Review
In their opening brief, plaintiffs argue the trial court “erred
in denying certification of the Minimum Wage and Overtime
Subclass by rejecting all evidence that would enable Plaintiffs to
litigate their claims on a class basis.” They contend that they
presented substantial evidence of a uniform policy requiring
CSRs to work off-the-clock before and after their shifts; that
“even if one gives credence to” the trial court’s finding that the
Agent States Reports are unreliable with respect to rest and meal
periods, such reports “cannot lie about when call center
employees log into the system at the beginning of the day or out
of it at the end of the day”; that no individualized inquiry is
necessary because time card data can be compared to the Agent
States Reports; and that the discrepancies between the time
cards and the Agent States Reports gave defendant at least
constructive knowledge of the off-the-clock work. Plaintiffs
develop these contentions over approximately four pages.
In their reply brief, plaintiffs devote approximately 32
pages—eight times as many—to different and significantly more
detailed arguments regarding the Minimum Wage and Overtime

29
Subclass. They first contend that the “trial court ignored
plaintiffs’ theory of recovery and common evidence regarding
computer login/boot up and logout/shut down time.” Within this
argument, they assert that the court failed to “meaningfully
analyze” defendant’s policies and improperly resolved the merits
of plaintiffs’ theory, and discuss at least six cases in which
common questions were found to predominate on what they
assert were similar facts. In their second argument, plaintiffs
contend the trial court “made an impermissible merits
determination when it decided defendants’ off-the-clock policy
was lawful,” such that its decision rests on improper legal criteria
and should be reversed. Third, plaintiffs contend that their
“liability showing was not based on individual class member
testimony” requiring individualized inquiry, clarify that they
“sought to establish Defendants’ liability through its [sic]
generally applicable written corporate policies,” and respond to
points defendant raised in its response brief. Fourth, plaintiffs
contend the trial court “erred in disregarding Agent State[s]
Reports which showed CSRs were working off-the-clock,” that
this evidentiary error was prejudicial, and the Agent States
Reports, even if “imperfect,” offered a reasonable basis from
which to calculate damages. Finally, plaintiffs argue that
defendant’s common policies and practices, “taken together,”
showed that defendant had actual or constructive knowledge that
CSRs were not recording all time worked on their time sheets.
It is well established that the purpose of a reply brief is to
address arguments made in the respondent’s brief; it may not be
used to raise new arguments or present new authorities.
“Obvious reasons of fairness militate against consideration of an
issue raised initially in the reply brief of an appellant.

30
[Citations.]” (Varjabedian v. City of Madera (1977) 20 Cal.3d
285, 295, fn. 11.) “‘[T]he rule is that points raised in the reply
brief for the first time will not be considered, unless good reason
is shown for failure to present them before. [Citations.]’
[Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn.
26.) No such good reason was shown here. Thus, we address the
arguments made in plaintiffs’ reply brief only to the extent that
they were adequately raised in the opening brief or made in
response to arguments presented by defendant in its response
brief. We take the same approach with respect to the other
subclasses as well.
2. Analysis
Substantial evidence of a “systematic company policy to
pressure or require employees to work off-the-clock” is required
when plaintiffs seek to certify a class of individuals allegedly
required to perform off-the-clock work. (Brinker, supra, 53
Cal.4th at p. 1051.) Employees who are clocked out are presumed
to be doing no work, and it is the plaintiffs’ burden to prove the
contrary. (Ibid.) The trial court concluded there was “no
substantial evidence demonstrating that Defendant had a
uniform policy requiring CSRs to work off-the-clock before and/or
after their scheduled shifts.” This was not erroneous,
particularly in light of plaintiffs’ clarification that they “sought to
establish Defendants’ liability through its generally applicable
written corporate policies.”
The only written policy plaintiffs proffered in support of
their minimum wage and overtime claim7 did not by its terms

7As we noted above, the “Scheduling” orientation document
to which plaintiffs refer in their briefing here was not presented

31
require or even allude to off-the-clock work. It stated: “Good
attendance and punctuality are expected of employees at Union
Bank. You are responsible for adhering to your scheduled hours.
Frequent or excessive absences or tardiness create a hardship for
your branch or department and should be avoided. Nonexempt
employees should arrive ready for work at their scheduled
starting time, return from lunch and breaks promptly, and work
until the work period ends.”
To the extent the policy required employees to “arrive ready
for work at their scheduled start time,” the testimony of
defendant’s PMK proffered by plaintiffs stated that “work”
included logging into and out of the computers, and plaintiff Cruz
agreed in her deposition that “work” included “anything done at
[her] workstation to prepare for [her] workday.” The trial court
also was presented with declarations from several other CSRs
and supervisors who had a similar understanding, as well as
evidence that defendant had policies expressly requiring accurate
recording of work time and prohibiting off-the-clock work. The
trial court was entitled to weigh the parties’ conflicting evidence
and did not err in concluding there was no substantial evidence of
a policy requiring CSRs to work off-the-clock and that individual
inquiry would be required. (See Brinker, supra, 53 Cal.4th at p.
1052; Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974,
991-992.)
Plaintiffs emphasize the policy’s use of the phrase
“scheduled hours,” and directive to “work until the work period
ends,” which they contend “systematically required or, at
minimum, pressured employees to strictly adhere to their

to the trial court in support of certifying this subclass. We
accordingly do not consider it here.

32
scheduled hours.” The only evidence plaintiffs presented in
support of this alleged systematic requirement or pressure was
three declarations and an isolated comment from a single
supervisor. The trial court reasonably concluded that this
“anecdotal evidence of a handful of individual instances”
(Brinker, supra, 53 Cal.4th at p. 1052) “suggests that different
supervisors communicate different instructions to their
respective supervisees” and that individualized inquiry would be
required to establish defendant’s liability on a class-wide basis.
Plaintiffs also note that the trial court supported its finding
by ruling that the Agent States Reports were unreliable. They
suggest this was incorrect—“Agent States Reports cannot lie
about when call center employees log into the system at the
beginning of the day or out of it at the end of the day”—and
assert that the times on the reports are accurate. However,
plaintiffs wait until their reply brief to formally challenge this
discretionary evidentiary ruling and argue that it was
prejudicial. We accordingly do not consider whether the ruling
was an abuse of discretion.
Plaintiffs also argue that individualized inquiry is
unnecessary because “whether employees logged into the
Smartphone system before the times indicated on their
timesheets may be shown by comparing the timesheet data to the
Softphone login and logout data from the Agent States Reports.”
Such employee-by-employee, day-by-day comparisons epitomize
the “CSR-by-CSR inquiry” the trial court concluded would be
necessary on this record to demonstrate liability. To the extent
plaintiffs’ expert Lietzow performed this analysis for five
employees, his results did not support plaintiffs’ claim of a
uniform policy. Instead, they showed that one of the five

33
employees accounted for 89 percent of the discrepancies between
log in and clock in times, and another accounted for 86 percent of
the discrepancies between log out and clock out times. The trial
court did not abuse its discretion or, as plaintiffs suggest in their
reply brief, improperly apply Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, by
finding the Agent States Reports unreliable and Lietzow’s
analysis of them insufficient to demonstrate the predominance of
common questions. “[C]lass treatment is not appropriate ‘if every
member of the alleged class would be required to litigate
numerous and substantial questions determining his individual
right to recover following the “class judgment”’ on common
issues.” (Duran, supra, 59 Cal.4th at p. 28.)
The final argument raised in plaintiffs’ opening brief is that
the discrepancies between the Agent States Reports and the time
cards demonstrate defendant’s actual or constructive knowledge
that CSRs were working off-the-clock on its behalf. (See Brinker,
supra, 53 Cal.4th at p. 1051; Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575, 584-585.) This is not a basis on which the
trial court denied the motion, nor does it comport with plaintiffs’
assertion that defendant’s written policies form the basis of its
theory of liability.
B. On-Premises Rest Period Subclass
Plaintiffs contend that the trial court abused its discretion
by ignoring their evidence of a uniform policy and failing to
adequately consider their policy-based theory of liability. We
agree.
“During required rest periods, employers must relieve their
employees of all duties and relinquish any control over how
employees spend their break time.” (Augustus v. ABM Security

34
Services, Inc. (2016) 2 Cal.5th 257, 260, 269.) Plaintiffs
contended defendant failed to do so by adopting a uniform
policy—the orientation document—barring them from leaving the
premises during rest breaks. They also presented testimony from
defendant’s PMK that the policy espoused in the orientation
document was in effect during the class period, from Mena that
she was not allowed to leave the premises during her rest
periods, and from Beaty that he did not recall being authorized to
leave during rest periods. The trial court found that individual
issues would predominate because plaintiffs failed to present
substantial evidence of a uniform policy or that the orientation
document containing the alleged policy was distributed or applied
to all CSRs. The court further observed that defendant’s PMK
also testified that she did not know whether defendant had a rule
prohibiting CSRs from leaving the premises during rest periods,
and defendant presented declarations from CSRs who stated they
were allowed to leave.
“[W]hen analyzing the element of predominance for
purposes of class certification, ‘the focus must be on the policy the
plaintiffs are challenging and whether the legality of that policy
can be resolved on a classwide basis.’” (ABM Industries Overtime
Cases (2017) 19 Cal.App.5th 277, 308, quoting Lubin v. The
Wackenhut Corp. (2016) 5 Cal.App.5th 926, 940 (Lubin). An
employer does not have a “due process right to prove on an
individualized basis that it provided off-duty rest periods to every
class member.” (Lubin, supra, 5 Cal.App.5th at p. 955.) “If
[defendant] had a policy or practice that violates labor laws, then
class treatment is appropriate. [Citation.] Individualized
inquiries into whether an employee had a required break on a
specific day is relevant to damages, and ‘[t]he fact that individual

35
[employees] may have different damages does not require denial
of the class certification motion.’ [Citation.]” (Id. at pp. 955-956.)
Plaintiffs’ theory of liability—that defendant had a uniform
policy prohibiting CSRs from leaving the premises during their
breaks, and that policy allegedly violates the law—is by its
nature a common question suited for class treatment. (Naranjo
v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5th 444,
481 (Naranjo), review granted on other grounds, Jan. 2, 2020,
S258966; see also Brinker, supra, 53 Cal.4th at p. 1033.) The
individualized issues the trial court emphasized—whether the
policy was communicated to each CSR and whether each CSR in
fact left the premises during rest breaks—relate to damages and
do not require denial of class certification. (See Naranjo, supra,
40 Cal.App.5th at pp. 480-481.) “Brinker, supra, 53 Cal.4th 1004,
[citation] does not require class proponents to establish the
universal application of an allegedly illegal policy; rather, a class
proponent need only show a ‘consistent[ ]’ application of the
policy. [Citation.] In Brinker’s wake, courts have repeatedly
found that a defendant employer’s evidence of an inconsistent
application of an illegal policy to be insufficient on its own to
defeat class certification.” (Alberts v. Aurora Behavioral Health
(2015) 241 Cal.App.4th 388, 409 [collecting cases].) The court
accordingly erred in finding that common questions did not
predominate with respect to this subclass.
C. Third Rest Period Subclass
In finding that this claim was “not susceptible to common
proof,” the trial court reasoned that even if defendant’s policy
were “facially defective,” “there is no substantial evidence of a
universal practice of denying third rest periods” and
“individualized inquiry is necessary to determine issues such as

36
why a CSR missed a third rest period for each particular
occasion, whether he/she requested a rest period premium, and if
he/she did not request a rest period premium, why he/she chose
not to do so.” Plaintiffs contend this was error because liability
could be determined based solely on the policy, and the only
individualized inquiry necessary pertained to damages.
Defendant contends plaintiffs’ theory is “false,” because it
presented evidence that its policies were compliant, and the trial
court was entitled to credit that evidence over plaintiffs’.
We agree with plaintiffs, largely for the same reasons
discussed above in connection with the On-Premises Rest Period
subclass. Plaintiffs alleged that defendant applied an illegal
policy to all CSRs, which was articulated by the chart in the
Human Resources Manual. Whether plaintiffs’ evidence
establishes liability is a common question well suited to class
treatment. (Naranjo, supra, 40 Cal.App.5th at p. 481.)
Certification of a class is a procedural question that generally
does not turn on whether an action is legally or factually
meritorious. (Brinker, supra, 53 Cal.4th at p. 1023.) Thus,
defendant’s contention that plaintiffs’ theory is “false” is not an
appropriate basis on which to deny certification.
The trial court’s reasoning that plaintiffs were required to
submit substantial evidence of a universal practice of denying
third rest periods even if the policy were facially defective is
legally erroneous. As noted above, “Brinker, supra, 53 Cal.4th
1004 [citation]does not require class proponents to establish the
universal application of an allegedly illegal policy; rather, a class
proponent need only show a ‘consistent[ ]’ application of the
policy. [Citation.]” (Alberts v. Aurora Behavioral Health, supra,
241 Cal.App.4th at p. 409.)

37
 Additionally, the possible areas of individualized inquiry
that concerned the trial court pertain to damages suffered by
individual CSRs and defenses possibly available to defendant.
“[U]nder Brinker, the fact that individualized inquiry might be
necessary to determine whether individual employees were able
to take breaks despite the defendant’s allegedly unlawful policy
(or unlawful lack of a policy) is not a proper basis for denying
certification. Rather, for purposes of certification, the proper
inquiry is ‘whether the theory of recovery advanced by the
plaintiff is likely to prove amenable to class treatment.’
[Citation.]” (Benton v. Telecom Network Specialists, Inc. (2013)
220 Cal.App.4th 701, 726; see also Lubin, supra, 5 Cal.App.5th at
pp. 941-942.) Plaintiffs’ theory meets that standard. The trial
court accordingly erred in finding that common questions did not
predominate with respect to this subclass.
D. Second Meal Period Subclass
The trial court found that individual questions
predominated plaintiffs’ second meal period claim for several
reasons: the Agent States Reports on which plaintiffs relied to
demonstrate a lack of second meal periods were unreliable,
plaintiffs’ expert did not consider meal period waivers,
defendant’s expert (who did consider the waivers) found
exceedingly few missed meal periods, and individualized inquiry
would be required to determine why a CSR did not take a second
meal period. Echoing their previous arguments, plaintiffs
contend their allegation of a defective or nonexistent policy is one
that can be resolved on a classwide basis. They also argue that
the trial court erred by “presum[ing] the validity of an affirmative
defense with no proof” when it “criticized Plaintiff’s [sic] expert
for not accounting for alleged meal period waivers.”

38
 We agree that the trial court erred, as its decision rested on
improper criteria. The Supreme Court “does not endorse . . . that
the question why a meal period was missed renders meal period
claims categorically uncertifiable.” (Brinker, supra, 53 Cal.4th at
p. 1052 (Werdegar, J., concurring).) “An employer’s assertion
that it did relieve the employee of duty, but the employee waived
the opportunity to have a work-free break, is not an element that
a plaintiff must disprove as part of the plaintiff’s case-in-chief.
Rather, . . . the assertion is an affirmative defense, and thus the
burden is on the employer, as the party asserting waiver, to plead
and prove it.” (Id. at p. 1053 (Werdegar, J., concurring).) As we
discuss more fully below, “whether in a given case affirmative
defenses should lead a court to approve or reject certification will
hinge on the manageability of any individual issues.” (Id. at p.
1054 (Werdegar, J., concurring).)
Plaintiffs’ allegation of an unlawful policy (or lack thereof)
was not dependent on the Agent States Reports the trial court
deemed unreliable. While plaintiffs may ultimately be unable to
prove that the policy in question had illegal effects on the class
members, whether due to a lack of evidence or due to the validity
of defendant’s affirmative defense of waiver, that is not an issue
to be resolved at the certification stage.
III. Typicality Ruling
The trial court concluded that plaintiffs Beaty and Cruz
were not typical of the Third Rest Period and Second Meal Period
subclasses because there was no substantial evidence that either
of them ever worked a shift of more than 10 hours. In doing so, it
dismissed plaintiffs’ reliance on a single time card that showed
that Beaty worked a shift of either 10 or 12 hours; the time card
is facially inconsistent in this regard.

39
 Plaintiffs do not dispute the ruling as to Cruz, for whom
they presented no evidence of shifts exceeding 10 hours. As to
Beaty, however, plaintiffs contend the trial court “was wrong in
its analysis of the factual record and whether it could find that
typicality was lacking on that ground.” They further assert, in
reply, that “one timesheet evidencing a math mistake was not
sufficient to undo [Beaty’s deposition] testimony” that he “did not
recall being authorized to take a second meal break or third rest
break on shifts over ten hours.” We are not persuaded the trial
court abused its discretion.
To be typical of a class, a plaintiff should have the same or
a similar injury as other members of the class. (Seastrom v.
Neways, Inc., supra, 149 Cal.App.4th at p. 1502.) Here, the
alleged injuries were the denial of a third rest break and second
meal period on shifts exceeding ten hours. The only evidence
that Beaty worked even one shift in excess of ten hours during
his five-to-six year tenure with defendant was a single, facially
ambiguous timecard. The trial court was permitted to conclude
that such evidence was not substantial evidence of typicality. To
be substantial, evidence must be reasonable in nature, credible,
and of solid value. (Sav-On Drug Stores, Inc. v. Superior Court,
supra, 34 Cal.4th at p. 328.) The trial court reasonably
questioned whether the timecard in question—on which Beaty
affirmed he worked a total of 10 hours despite time entries
indicating he worked 12—met that standard. Moreover, “‘[w]here
a certification order turns on inferences to be drawn from the
facts, the reviewing court has no authority to substitute its
discretion for that of the trial court.’” (Ibid.)
Plaintiffs point to a single case in their opening brief,
Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 137-

40
138, disapproved on other grounds by Noel, supra, 7 Cal.5th at p.
986, fn. 15. There, the trial court found plaintiffs were not
typical of the class because they gave “incompatible and
contradictory” deposition testimony regarding the time they
spent on relevant projects. (Aguiar, supra, 144 Cal.App.4th at p.
137.) The appellate court concluded that the use of subclasses
could solve the typicality problem: “To the extent plaintiffs’
testimony regarding the hours they worked on DWP contracts
suggests they spent at least 20 hours per month on DWP goods,
they can adequately represent a class of similarly situated
employees. Other putative class members can be represented
adequately by a named plaintiff who did not work 20 hours per
month on the DWP contracts. . . .” (Ibid.) Here, the groups
plaintiffs seek to represent already have been divided into
subclasses, and plaintiffs do not fit within the groups of CSRs
affected by the policies the Third Rest Period and Second Meal
Period subclasses are challenging. “A class representative who
does not have a claim against the defendants cannot satisfy the
typicality requirement.” (Martinez v. Joe’s Crab Shack Holdings,
Inc., supra, 231 Cal.App.4th at p. 375.)
In their reply, plaintiffs point to Beaty’s deposition
testimony that he “did not recall being authorized to take a
second meal break or third rest break on shifts over ten hours.”
They suggest that this testimony shows he was subject to the
same policy as other CSRs, and cannot be “undone” by the
ambiguous timecard. Their reliance on Franchise Tax Board
Limited Liability Corp. Tax Refund Cases (2018) 25 Cal.App.5th
369, 395-396 does not support their position. In that case, the
difference between the plaintiffs and the class they sought to
represent was “essentially irrelevant”: though plaintiffs earned

41
income from both in and out of state, the question at issue was
whether a levy to which all potential class members were subject
was unconstitutional. Here, the difference between plaintiffs and
the Third Rest Period and Second Meal Period subclasses is not
“irrelevant” to their right to recover; it is determinative.
IV. Adequacy Ruling
The trial court concluded that plaintiffs were not adequate
representatives of any of the rest period and meal period claims
because “some CSRs were responsible for enforcing Defendant’s
alleged illegal meal and rest period policies and practices.”
Citing Lampe v. Queen of the Valley Medical Center (2018) 19
Cal.App.5th 832, 850 (Lampe), plaintiffs contend the
“fundamental error here was that there was no evidence that
Plaintiffs ever served as leads themselves, nor any other evidence
that their interests were ‘antagonistic to or in conflict with the
objectives of the classes.’” We agree that the trial court’s ruling
was unsupported by substantial evidence.
“‘The adequacy of representation component of the
community of interest requirement for class certification comes
into play when the party opposing certification brings forth
evidence indicating widespread antagonism to the class suit.’
[Citation.]” (Martinez v. Joe’s Crab Shack Holdings, supra, 231
Cal.App.4th at p. 375.) Here, defendant presented a few
declarations stating that defendant “sometimes” relied on “lead
CSRs” to enforce and administer its meal and rest break policies,
that such lead CSRs had discretion, and that “some proposed
class members” served as “lead CSRs.” This evidence did not
evince “widespread antagonism” to the class. There is no
indication how many potential class members served as lead
CSRs, nor is there any indication that plaintiffs were among
them. (Contra Lampe, supra, 19 Cal.App.5th at p. 850 [named

42
plaintiff “testified she was responsible for scheduling meal breaks
for nurses in her unit which caused a conflict of interest with the
members of the class”].) To the extent that some of the 180
putative class members may have served as lead CSRs, any
conflict may be remedied by creating a subclass of lead CSRs or
by excluding lead CSRs from the subclasses already defined by
plaintiffs. (Martinez v. Joe’s Crab Shack Holdings, supra, 231
Cal.App.4th at pp. 376-377.)
Defendant asserts that “Lampe does not stand for the
proposition that proposed class representatives must be
responsible for providing meal and rest periods in order for class
conflicts to exist. Instead, conflicts arise if some proposed class
members have conflicts with the class representatives or others.”
Defendant provides no support for this contention, which we do
not find persuasive. The only discussion of adequacy in Lampe
concerns a named plaintiff who was responsible for scheduling
meal breaks for members of the class she sought to represent.
(See Lampe, supra, 19 Cal.App.5th at p. 850.) Thus, the only
proposition Lampe stands for is that a named plaintiff with
similar responsibilities may be antagonistic to a class containing
her supervisees. There is no evidence that is the case here.
V. Manageability/Superiority Ruling
When considering a class certification motion, the trial
court “must pay careful attention to manageability,” or whether
adjudication of the claims can be managed fairly and efficiently.
(Duran, supra, 59 Cal.4th at p. 29.) Even if a plaintiff has
satisfied all of the other class certification criteria, “class
treatment is not appropriate ‘if every member of the alleged class
would be required to litigate numerous and substantial questions
determining his individual right to recover following the “class

43
judgment” on common issues.’” (Id. at p. 28.) “In wage and hour
cases where a party seeks class certification based on allegations
that the employer consistently imposed a uniform policy or de
facto practice on class members, the party must still demonstrate
that the illegal effects of this conduct can be proven efficiently
and manageably within a class setting.” (Id. at p. 29.) The
manageability assessment informs the trial court’s determination
of whether a class action is a superior means of resolving the
claims. “In determining the superiority of class treatment, the
trial court must weigh the respective benefits and burdens of
class litigation; maintenance of the class action will only be
permitted where substantial benefits accrue to both the litigants
and the court.” (Soderstedt v. CBIZ Southern California, LLC
(2011) 197 Cal.App.4th 133, 156.)
The trial court concluded that the superiority and
manageability requirements were not satisfied because plaintiffs
failed to carry their burden of demonstrating how individualized
issues, including the adjudication of affirmative defenses, would
be managed. Plaintiffs contend this conclusion was erroneous
because it “ignores Plaintiffs’ policy-based theories of liability”
and focuses instead on “issues that are not even presented via
Plaintiffs’ theories, and in many instances are irrelevant to
further class proceedings because the issues that concerned the
court apply only” to subclasses not challenged in this appeal.
They further assert that the individual issues the court identified
relate to damages and therefore were not an appropriate basis on
which to deny class certification.
The trial court did not abuse its discretion. Even plaintiffs
who allege uniform policies “must still demonstrate that the
illegal effects of this conduct can be proven efficiently and

44
manageably within a class setting” (Duran, supra, 59 Cal.4th at
p. 29), and plaintiffs failed to do that here. Their trial plan
largely reiterated their predominance arguments, providing little
information or assurance to the trial court that individualized
inquiries could be managed. Although defendant may not have
“a due process right to litigate an affirmative defense as to each
individual class member,” it “must have an opportunity to
present proof of [its] affirmative defenses within whatever
method the court and the parties fashion to try these issues.” (Id.
at p. 38.) Plaintiffs did not propose any method, or even
acknowledge the possibility that affirmative defenses may be
presented.
Plaintiffs correctly observe that “[d]efenses that raise
individual questions about the calculation of damages generally
do not defeat certification.” (Duran, supra, 59 Cal.4th at p. 30.)
Yet “whether in a given case affirmative defenses should lead a
court to approve or reject certification will hinge on the
manageability of any individual issues.” (Brinker, supra, 53
Cal.4th at p. 1054 (Werdegar, J., concurring).) The Supreme
Court has “encouraged the use of a variety of methods” to ensure
the manageability of “individual claims that might otherwise go
unpursued to be vindicated, and to avoid windfalls to defendants
that harm many in small amounts rather than a few in large
amounts.” (Ibid.) “Representative testimony, surveys, and
statistical analysis all are available as tools to render
manageable determinations of the extent of liability.” (Ibid.) As
the trial court found, plaintiffs’ “failure to deal with the highly
individualized nature of the defenses in this case as part of a trial
plan is fatal to its [sic] claim of manageability.” Even with
respect to subclasses in which defendant’s intended affirmative

45
defenses were apparent, such as the waiver defense to the Second
Meal Period subclass, plaintiffs offered no suggestions as to
methods that might be used to manage those defenses at trial.
Plaintiffs now assert that “the legality and enforceability of
Defendants’ meal period waivers is itself subject to classwide
proof through business records,” employee timecards and signed
waivers, but they did not raise this point before the trial court.8
The trial court also expressed concern about plaintiffs’ plan
to use their experts’ analyses to prove damages at trial, as the
Agent States Reports were unreliable and “Plaintiffs did not ask
them [the experts] to formulate any aspect of a trial plan by
which this case could be tried.” Plaintiffs have not challenged
this aspect of the trial court’s ruling on appeal. Even if they had,
we are not persuaded that this consideration was beyond the trial
court’s purview in assessing manageability and superiority. The
trial court did not abuse its discretion in concluding that
plaintiffs failed to demonstrate superiority and manageability.
DISPOSITION
The order of the trial court is affirmed. The parties are to
bear their own costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. CURREY, J.

8Even if they had, it is unclear how the question of whether
each CSR signed a valid waiver would be susceptible to common
proof, or why “[t]here is no need to parade each class member to
the witness stand.”

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