Cirrincione v. American Scissor Lift CA3

Filed 12/6/21 Cirrincione v. American Scissor Lift CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----

JASON CIRRINCIONE, C092519

Plaintiff and Appellant, (Super. Ct. No. STK-CV-
UOE-2018-0004608)
v.

AMERICAN SCISSOR LIFT, INC. et al.,

Defendants and Respondents.

Plaintiff Jason Cirrincione appeals from the order denying class certification in
this wage and hour action he filed against his former employer, defendant American
Scissor Lift, Inc. (ASL). He contends reversal is required for a number reasons,
including that the trial court’s ruling rests upon improper merits determinations and
incorrect assumptions. We disagree and affirm the order denying class certification.
BACKGROUND
We summarize the relevant background and add facts throughout the Discussion
section where necessary to resolve the claims raised on appeal.

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 The Operative Complaint and Class Certification Motion
ASL is in the business of renting heavy machinery equipment such as scissor lifts
and machine booms. It is headquartered in Stockton and has locations in West
Sacramento, Stockton, Morgan Hill, and El Cajon. From approximately August 2013 to
September 2016, plaintiff worked for ASL in Stockton as a non-exempt, hourly
employee. His primary duty was to paint rental equipment; he also welded, sanded,
cleaned, assembled, and delivered the equipment. Plaintiff and other hourly employees
were eligible for production bonuses each pay period (twice a month), based on the
amount of equipment they prepared for rental.
In April 2018, plaintiff filed a class action complaint against ASL and others. 1
The operative complaint, the second amended complaint, was filed in March 2019. It
alleged causes of action for failure to pay overtime wages (Lab. Code, §§ 510, 11942;
Wage Order No. 16-2001 (Cal. Code Regs., tit. 8, § 11160, subd. 3(A), hereafter Wage
Order No. 16), failure to pay minimum wages (§ 1194), failure to provide meal breaks or
premium wages in lieu thereof (§§ 226.7, 512; Wage Order No. 16, subd. 10(A), (B) &
(F)), failure to provide rest breaks or premium wages in lieu thereof (§ 226.7; Wage
Order No. 16, subd. 11(A), (D)), waiting time penalties (§§ 201-203), failure to pay
reimbursement expenses (§ 2802), and unfair competition (Bus. & Prof. Code, § 17200).
Plaintiff purported to represent as many as 50 similarly situated former and current
employees of ASL.

1 Plaintiff also brought suit against Sacramento Scissor Lift, Inc. (SSL) and Michael
Melthratter. Pursuant to stipulation, SSL was dismissed from this action shortly after the
class certification motion was filed. At all relevant times, Melthratter was the chief
executive officer and president of ASL.
2 Undesignated statutory references are to the Labor Code.

2
 The relevant claims alleged in the operative complaint are predicated on ASL’s
policy and/or practice of rounding the work time of its employees (which allegedly
resulted in the systematic underpayment of wages), and ASL’s failure to: 1) provide
meal breaks or pay premium wages in lieu thereof; 2) authorize or permit employees to
take rest breaks or pay premium wages in lieu thereof; 3) timely pay its employees all
unpaid wages due at termination or resignation; and 4) reimburse employees for using
their personal cell phones, vehicles, and tools for work purposes.
In October 2019, plaintiff moved for class certification. He sought to certify a
class or seven subclasses, including a rounding subclass, two meal break subclasses, two
rest break subclasses, a no reimbursement subclass, and a final wage subclass. The
proposed subclasses consisted of all non-exempt, hourly employees currently or formerly
employed by ASL from April 20, 2014, or April 20, 2015 until the date of class
certification. The meal and rest break subclasses limited membership in the class to
employees who worked a certain number of hours per day. For example, the first meal
break subclass was limited to employees who worked more than five hours in a day and
the second meal break subclass was limited to employees who worked more than 10
hours in a day.
In support of his class certification motion, plaintiff asserted that “[t]here are at
least 54 putative class members falling within the defined class,” although he did not
specify how many of these individuals were in each of the seven proposed subclasses.
Plaintiff sought class certification based on the following theories of liability: 1) “ASL
. . . engaged in unlawful rounding of employees’ hours worked because it did not have
any rounding policy and the net effect of its rounding resulted in the systematic
underpayment of wages”; 2) “ASL failed to authorize and permit meal and rest periods
by failing to adopt compliant meal and rest period policies, resulting in unpaid meal and
rest period premiums”; and 3) “ASL failed to reimburse employees for the use of their
personal tools and cell phones by failing to adopt any policy allowing for employees to

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submit expenses for reimbursement.” Plaintiff asserted that ASL’s conduct also resulted
in derivative liability for waiting time penalties and unfair competition, and that those
claims would “satisfy the commonality and predominance requirements to the same
extent as the claims they are based on.” He argued that class certification was warranted
because “[t]he focus of this case is on ASL’s actions in that it failed to adopt compliant
policies, which resulted in unpaid wages, unreimbursed expenses, penalties, and interest.”
He added that “[t]he lawfulness of ASL’s policies (or lack thereof) is what is being
litigated in this action,” which are “ ‘the sort routinely, and properly, found suitable for
class treatment.’ ”
ASL opposed the motion, arguing that plaintiff failed to carry his burden to
establish the requirements for class certification, including the well-defined community
of interest requirement. Among other things, ASL argued that common questions of law
and/or fact did not predominate over individual issues because its decisionmaking
process was decentralized (each branch location was run by the managers at that
location), it had no uniform company-wide policies or practices related to the proposed
subclasses (e.g., rounding policy or practice) but the managers at each branch location
“followed the law,” and the applicable IWC wage order was posted at each branch
location, in the employee break room or near the time card clock.
The Trial Court’s Ruling
After a hearing, the trial court issued a written order denying plaintiff’s motion for
class certification in July 2020. The court concluded that class certification was not
warranted because plaintiff had failed to establish that common questions of fact or law
would predominate over individual questions, or that plaintiff’s claims were typical of
those of the proposed subclasses. The court provided no analysis of the typicality
requirement, but focused on the predominance requirement, as we detail post. As for the
class certification requirements of ascertainability and numerosity, the court stated:
“Plaintiff defines his subclasses according to objectively identifiable characteristics, and

4
employees would be able to self-identify according to those definitions. Plaintiff has
provided some evidence of numerosity, but only as to the overall number of [ASL’s]
employees. Plaintiff did not undertake to provide evidence of numerosity as to each sub-
class.” The court, however, did not expressly deny class certification on the basis that
plaintiff failed to carry his burden to show numerosity as to any of the proposed
subclasses. Instead, it found that ASL’s arguments regarding ascertainability and
numerosity were “essentially arguments that individual questions predominate over
common questions.” As we review the trial court’s actual reasons for denying class
certification, no further discussion of these class certification requirements is warranted.3
(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436; Knapp v. AT&T Wireless
Services, Inc. (2011) 195 Cal.App.4th 932, 939.)
As for the proposed rounding subclass, the trial court began its analysis by noting
that an employer’s practice of rounding an employees’ work time is not a violation of
California law, so long as the rounding is done in a fair and neutral manner that does not
result in under compensation over a period of time, such as a policy or practice that
encompasses only rounding time down. The court rejected plaintiff’s contention that an
employer’s practice of rounding work time in the absence of a uniform, written rounding
policy is a violation of California law, finding that plaintiff had failed to support his
position with any case law. The court also rejected plaintiff’s contention that any
underpayment of wages resulting from ASL’s rounding practice could be accomplished
by simply reviewing payroll records, explaining that his claim was belied by his own

3 For the same reason, we do not discuss the typicality requirement, although we
recognize that California courts have held that even if the trial court’s order on class
certification does not state reasons, or does so without providing detail, it will be deemed
sufficient for review purposes so long as the basis for the court’s ruling may be discerned
from the record. (See, e.g., Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974,
986-987 [concluding that the trial court’s “succinct” order, elucidated by the parties’
briefing and oral argument was sufficient to permit meaningful appellate review].)

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evidence. The court noted that the timecard evidence submitted by plaintiff did not show
clock-in or clock-out times for meal periods, and that while plaintiff submitted
declarations from several employees indicating they frequently missed meal periods,
none of those employees stated that they missed their meal period every day. The court
explained that answering the question of whether an employee took a meal break on the
days when their hours were rounded was key to determining whether ASL’s rounding
practice resulted in underpayment of wages and would appear to vary from employee to
employee and day to day, and could not be accomplished by mere resort to payroll
records because, in at least some cases if not all cases, the payroll records did not show
whether meal periods were taken. The court added that the evidence submitted by ASL
showed that its rounding practice varied from location to location and supervisor to
supervisor. For example, a supervisor at the Morgan Hill branch rounded clock-in and
clock-out times up or down to the nearest quarter hour, whereas supervisors at the El
Cajon branch and West Sacramento branches always rounded time up in favor of the
employees, with the El Cajon supervisor rounding the total hours worked to the nearest
half hour and the West Sacramento supervisor rounding both clock-in and clock-out
times, not total hours worked. Finally, the court noted that each of ASL’s four branch
locations was currently using an electronic timekeeping system, TSheets, but that the date
of implementation of the system varied among the branches (e.g., early 2018, around
June 2017, September 2019) and within one branch, and that supervisors at two of the
branches continued to round time after the implementation of TSheets, with one
supervisor rounding total hours worked in a day and another rounding total hours worked
in a pay period.
Under these circumstances, the trial court concluded that plaintiff’s rounding
claim was not suitable for class treatment. It stated: “Because of the varying practices at
each location, compounded by the varying timeframes for the adoption of the TSheets
software, it is impossible to determine whether [ASL’s] rounding practices resulted in

6
underpayment of employees as a group over time without a predominance of individual
inquiries. At the least, the court would need to evaluate each branch location on its own,
and further dissect the inquiry according to the time before and after TSheets was
implemented at that location. . . . [I]t would also be necessary to determine when
employees took meal breaks that are not reflected on timecards or in TSheets.”
As for the proposed meal and rest break subclasses, the trial court initially noted
that ASL had submitted evidence indicating that each of its branch locations displayed
the applicable IWC Wage Order setting forth an employee’s rights to meal and rest
breaks, and that some supervisors gave additional verbal or written instructions about the
use of breaks, which were similar but not identical, while some supervisors gave no
additional instructions. The court also noted that changes in ASL’s practices during the
class period “compound the problem”; ASL did not track meal breaks before
approximately March 2018, rather it simply assumed that employees took their breaks
prior to that date. In concluding that plaintiff’s proposed meal and rest period claims
were not suitable for class treatment, the court found that a determination of liability
would require an individualized inquiry as to what each employee was told about their
meal and rest breaks in addition to the information that was set forth in the IWC Wage
Order at the branch location where they worked. The court further found that the issue of
waiver was relevant to the meal and rest break claims, and that an individual inquiry
would be necessary, at least for the time period prior to March 2018, to determine
whether each employee took their meal and rest breaks and why they did so.
As for the proposed reimbursement subclass, the trial court concluded that
plaintiff’s reimbursement claim was not suitable for class treatment, finding that
individual issues would predominate as ASL did not have a uniform reimbursement
policy and ASL’s reimbursement practices varied by branch location and the type of

7
work performed by employees. 4 Finally, the court found that plaintiff’s derivative claims
were not suitable for class treatment for the reasons stated in denying certification as to
his other claims.
Plaintiff timely appealed from the order denying class certification. The case was
fully briefed on July 23, 2021, and was assigned to this panel on September 28, 2021.
DISCUSSION
I
Standard of Review and Class Certification
Code of Civil Procedure section 382 authorizes a class action “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 . . . .” Our Supreme
court has “articulated clear requirements for the certification of a class. 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.
[Citations.] ‘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.” ’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021
(Brinker). Our high court has described the proper standard of review from an order on a
class certification motion as follows: “We review the trial court’s ruling for abuse of
discretion and generally will not disturb it ‘ “unless (1) it is unsupported by substantial
evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal
assumptions.” ’ [Citation.] We review the trial court’s actual reasons for granting or

4 Because plaintiff does not challenge this aspect of the trial court’s ruling, no further
discussion of the proposed reimbursement subclass is necessary.

8
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 (Ayala).)5
One valid reason for denying certification is sufficient. (Sav-On Drugs Stores,
Inc. v. Superior Court (2004) 34 Cal.4th 319, 327 (Sav-On) ; Soderstedt v. CBIZ
Southern California, LLC (2011) 197 Cal.App.4th 133, 143.)
Predominance is the primary class certification requirement at issue in this case.
The ultimate question in determining whether the predominance requirement has been
met is whether “ ‘the issues which may be jointly tried, when compared with those
requiring separate adjudication, are so numerous or substantial that the maintenance of a
class action would be advantageous to the judicial process and to the litigants.’
[Citations.] The answer hinges on ‘whether the theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to prove amenable to class
treatment.’ [Citation.] A court must examine the allegations of the complaint and
supporting declarations [citation] and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding would be both desirable
and feasible.” (Brinker, supra, 53 Cal.4th at pp. 1021-1022, fn. omitted; see Ayala,
supra, 59 Cal.4th at p. 530 [the question at the class certification stage is “whether the
operative legal principles, as applied to the facts of the case, render the claims susceptible
to resolution on a common basis”].) “[T]he focus in a certification dispute is on what
type of questions—common or individual—are likely to arise in the action.” (Sav-On,
supra, 34 Cal.4th at p. 327.)

5 This standard of review “presents an exception to the general rule that a reviewing
court will look to the trial court’s result, not its rationale.” (4 Witkin, Cal. Procedure (5th
ed. 2008) Pleading, § 314(3), p. 432.)

9
 “ ‘As a general rule if the defendant’s liability can be determined by facts common
to all members of the class, a class will be certified even if the members must
individually prove their damages.’ ” (Brinker, supra, 53 Cal.4th at p. 1022.) However,
“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 judgment” ’ on common issues.” (Duran v. U.S. Bank
National Assn. (2014) 59 Cal.4th 1, 28 (Duran).) “ ‘Only in an extraordinary situation
would a class action be justified where, subsequent to the class judgment, the members
would be required to individually prove not only damages but also liability.’ ” (Id. at
p. 30.)
“The certification question is ‘essentially a procedural one that does not ask
whether an action is legally or factually meritorious.’ ” (Sav-On, supra, 34 Cal.4th at p.
326.) But this does not mean the trial court always must ignore the merits of the case:
“A class certification motion is not a license for a free-floating inquiry into the validity of
the complaint’s allegations; rather, resolution of disputes over the merits of a case
generally must be postponed until after class certification has been decided [citation],
with the court assuming for purposes of the certification motion that any claims have
merit [citation]. [¶] We have recognized, however, that ‘issues affecting the merits of a
case may be enmeshed with class action requirements . . . .’ [Citations.] When evidence
or legal issues germane to the certification question bear as well on aspects of the merits,
a court may properly evaluate them. [Citations.] The rule is that a court may ‘consider[]
how various claims and defenses relate and may affect the course of the litigation’ even
though such ‘considerations . . . may overlap the case’s merits.’ [Citations]. [¶] In
particular, whether common or individual questions predominate will often depend upon
resolution of issues closely tied to the merits.” (Brinker, supra, 53 Cal.4th at pp. 1023-
1024.) That is because a court must determine “whether the elements necessary to
establish liability are susceptible of common proof.” (Id. at p. 1024.)

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 Stated another way, “a trial court must examine the plaintiff’s theory of recovery,
assess the nature of the legal and factual disputes likely to be presented, and decide
whether individual or common issues predominate. To the extent the propriety of
certification depends upon disputed threshold legal or factual questions, a court may, and
indeed must, resolve them.” (Brinker, supra, 53 Cal.4th at p. 1025.)
Because predominance is a factual issue, the trial court’s finding that individual
issues predominate must be affirmed if it is supported by substantial evidence. (Brinker,
supra, 53 Cal.4th at p. 1022.) Under the substantial evidence standard, 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 . . . .’ ” (Ibid.) An inference is reasonable if it
is a product of logic and reason and rests on the evidence. (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1632-1633.)
II
Rounding Subclass
Plaintiff contends the trial court erred in concluding that his rounding claim is not
suitable for class treatment because the evidence presented showed that ASL had a
practice of rounding employee work time but no written rounding policy. He argues that
such a showing was sufficient to justify class treatment, and that the trial court
improperly relied on a merits determination in denying class certification and erred in
determining that a rounding practice without a uniform, written rounding policy is not a
violation of California law. Plaintiff adds that reversal is required because the ruling
rests on improper assumptions. We see no basis for reversal. 6

6 Plaintiff also asserts that the trial court’s order denying class certification is not
supported by substantial evidence. However, he has not pointed to any specific findings
that are unsupported by substantial evidence or developed any legal argument to support
this claim of error. When, as here, an appellant raises a claim of error but fails to support

11
 In determining the propriety of certifying the proposed rounding subclass, the trial
court began its analysis by discussing the substantive law governing plaintiff’s rounding
claim. This was proper. (See Ayala, supra, 59 Cal.4th at p. 530 [“We begin by
identifying the principal legal issues and examining the substantive law that will
govern”]; Duran, supra, 59 Cal.4th at p. 34 [“Class Actions are provided only as a means
to enforce substantive law”]; id., at p. 51 (conc. opn. of Liu, J.) [in determining whether
class certification is appropriate, “it is important that courts employ a proper
understanding of the substantive governing law”].) In order to determine whether
common or individual questions of law and fact predominate the trial court “ ‘must
examine the issues framed by the pleadings and the law applicable to the causes of action
alleged’ ” and decide “whether the elements necessary to establish liability are
susceptible of common proof or, if not, whether there are ways to manage effectively
proof of any elements that may require individualized evidence.” (Brinker, supra,
53 Cal.4th at p. 1024.) As our Supreme Court has explained, “a trial court must examine
the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely
to be presented, and decide whether individual or common issues predominate. To the
extent the propriety of certification depends upon disputed threshold legal or factual
questions, a court may, and indeed must, resolve them.” (Id. at p. 1025.)
In the operative complaint, plaintiff alleged that ASL had an unlawful unwritten
policy and/or practice of rounding employees’ work time that was not neutral on its face
or applied, which resulted in the “vast underpayment of wages” in violation of the Labor
Code. In his class certification motion, plaintiff asserted that his theory of liability as to
his rounding claim was that ASL “engaged in unlawful rounding of employees’ hours
worked because it did not have any rounding policy and the net effect of its rounding

it with reasoned argument and citation to authority, we treat the contention as waived.
(Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)

12
resulted in the systematic underpayment of wages.” He identified several common
questions of fact and law relevant to this claim, including whether ASL rounded
employees’ work time, whether ASL had a rounding policy, whether any rounding
resulted in a failure to compensate employees for all the time they worked, and whether it
is lawful for an employer to round employee work time without an actual policy
permitting such conduct. In his reply brief, plaintiff asserted, “Whether or not ASL had a
rounding policy and whether or not ASL engaged in rounding of employees’ hours
worked are certification issues, the answers to which have the ability to determine
liability on a class wide basis.” He stated, “Under [p]laintiff’s theory of liability, the
failure to have a rounding policy creates liability. . . . Thus, this raises a purely legal
question with the power to resolve the claims of numerous individuals with a simple yes
or no answer.” He added, “Similarly, the determination of whether the rounding of
employees time resulted, over a period of time, in the failure to compensate the employee
for all time actually worked, is a matter that can be summarily resolved by reference to
employee time record to determine what was actually worked versus what was paid and
then whether that difference is sufficient to establish liability.”
In view of the issues framed by the operative pleading and the class certification
briefing, we see nothing inappropriate in the trial court’s rejection of plaintiff’s
unsupported assertion that an employer’s practice of rounding employees’ work time
violates California law in the absence of a uniform, written rounding policy. Plaintiff has
not cited, and we are not aware of, any authority demonstrating that the trial court
improperly articulated the substantive law governing plaintiff’s rounding claim. As the
court correctly observed, an employer in California is entitled to round its employees’
work time if the rounding is done in a “fair and neutral” manner that does not result, over
a period in time, in the failure to properly compensate employees for all the time they
have actually worked. (See’s Candy Shops, Inc. v. Superior Court (2012)
210 Cal.App.4th 889, 907; see also Troester v. Starbucks Corp. (2018) 5 Cal.5th 829,

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847.) Under this standard, an employer’s rounding policy or practice is “fair and neutral”
if “ ‘on average, [it] favors neither overpayment nor underpayment’ ”; but such a policy
or practice is unacceptable if it “ ‘systematically undercompensate[s] employees’ ”
because it “ ‘encompasses only rounding down.’ ” (See’s Candy Shops, Inc., at pp. 901-
902, 907.) There is nothing in See’s Candy Shops, Inc. (or any other case we are aware
of) supporting the proposition that the absence of a written rounding policy constitutes a
violation of California law where an employer has a practice of rounding its employees’
work time. In short, plaintiff’s purported theory of liability is not a recognized theory of
liability. Contrary to plaintiff’s contention, the trial court did not improperly decide the
merits of a disputed issue in refusing to certify the proposed rounding subclass. Instead,
in determining whether common issues predominate, the court properly considered the
governing substantive law enmeshed with class action requirements.
We need not decide whether the trial court’s ruling rested, in part, on erroneous
assumptions related to meal breaks as plaintiff claims, because the record reflects that the
court determined that the rounding claim was not suitable for class treatment due to the
predominance of individual issues unrelated to meal breaks. The trial court need only
state one valid reason for denying certification. (Sav-On, supra, 34 Cal.4th at p. 327; see
also Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 844 [we
may not reverse simply because some of the court’s reasoning was faulty, so long as any
of the stated reasons are sufficient to justify the order].) The evidence presented in
connection with the class certification motion showed that ASL did not have a uniform,
written policy or a consistently applied company-wide practice of rounding work time,
but rather a rounding practice that varied among its four branch locations. Indeed, it is
undisputed that ASL had “no policy to round time card entries,” and that ASL’s
supervisors “were not given any training by ASL on how, or under what circumstances,
they could lawfully round an employee’s hours worked, relying instead on their own
personal views and experiences inform what actions they would take” in rounding

14
employees’ work time. The evidence also showed that, during the proposed class period,
each of ASL’s four branch locations implemented an electronic timekeeping system
(TSheets) at various times, and some supervisors continued to round work time thereafter
while other supervisors did not. The trial court’s order clearly reflects that these were the
primary reasons for the denial of class certification as to plaintiff’s proposed rounding
subclass and that individualized issues related to meal periods was an additional reason
supporting denial.
Finally, we reject plaintiff’s contention that reversal is required because the trial
court’s ruling was not based on his theory of recovery, which was not predicated on a
location-by-location review of ASL’s rounding practices, and because the ruling was
inconsistent with how rounding claims are properly analyzed. In support of his position,
plaintiff relies on AHMC Healthcare, Inc. v. Superior Court (2018) 24 Cal.App.5th 1014.
However, unlike here, AHMC involved a uniform rounding policy that was applied via an
electronic payroll system, which automatically rounded all employees time up or down to
the nearest quarter of an hour. (Id. at pp. 1016-1017, 1027.) The determination of
whether the rounding policy was lawful in that case was based on data compiled from
time records. (Id. at p. 1018.)
Nothing in AHMC Healthcare, Inc. persuades us that reversal is required under the
circumstances of this case. Plaintiff offers no authority supporting his suggestion that the
trial court was required to ignore the evidence presented and accept his position that
liability on a class-wide basis could be proved through the lack of a uniform, written
rounding policy and the examination of timecard and payroll records. “In the wage and
hour context, courts routinely have found suitable for class treatment a claim alleging an
employer consistently applied a uniform policy that harmed an identifiable class of
employees when the policy and the harm it caused are subject to common proof for all
class members. [Citation.] To obtain certification of such a class, the class proponent
must “present substantial evidence that proving both the existence of [the employer’s]

15
uniform policies and practices and the alleged illegal effects of [the employer’s] conduct
could be accomplished efficiently and manageably within a class setting.” (Kizer v.
Tristar Risk Management (2017) 13 Cal.App.5th 830, 842.) In cases where there is
conflicting evidence as to whether there is a uniform policy or practice and the impact
such a policy or practice had on the proposed class members, a trial court may weigh the
evidence for the “purpose of determining whether the record sufficiently supported the
existence of predominant common issues provable with classwide evidence, such that ‘
“the maintenance of a class action would be advantageous to the judicial process and to
the litigants.” ’ ” (Dailey v. Sears, Roebuck & Co., supra, 214 Cal.App.4th at p. 991; see
also Mies v. Sephora U.S.A., Inc. (2015) 234 Cal.App.4th 967, 981 [if the evidence is
conflicting on the issue of whether common or individual questions predominate, the trial
court is permitted to credit one party’s evidence over the other’s in determining whether
the requirements for class certification have been met].)
Here, as we have explained, the evidence showed that ASL did not have a
uniform, written rounding policy or a company-wide rounding practice that was
consistently applied at its four branch locations during the proposed class period, and
plaintiff failed to present substantial evidence demonstrating that the alleged illegal
effects of ASL’s rounding practice (i.e., the harm caused by the practice) could be
established efficiently through resort to common proof for all class members. Simply
alleging the existence of a uniform policy or practice (or unlawful lack of a policy) is not
enough to establish predominance of common questions required for class certification.
(Cruz v. Sun World Internat., LLC (2015) 243 Cal.App.4th 367, 384, disapproved on
another ground as stated in Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 986, fn.
15.) The alleged unlawful policy (or unlawful lack of a policy) must be a means to
establish liability on a class-wide basis. (Payton v. CSI Electrical Contractors, Inc.
(2018) 27 Cal.App.5th 832, 843.) A plaintiff’s theory of common proof “must have a
foundation in the evidence.” (Id. at p. 842.)

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 III
Meal and Rest Break Subclasses
Plaintiff contends reversal is required because the trial court improperly analyzed
the propriety of class certification as to his meal and rest break subclasses under a
“failure to relieve theory” rather than a “failure to authorize theory.” Plaintiff
additionally contends that the trial court improperly relied on a merits determination in
denying class certification. Finally, defendant contends the trial court erred in assuming
that time records were insufficient to establish a prima facie case of liability. We see no
basis for reversal.
A. Legal Principles
Meal and rest break rules are contained in wage orders issued by the IWC. The
wage orders are issued on an industry-by-industry basis. (Brinker, supra, 53 Cal.4th at p.
1018, fn. 1.) It is not disputed that Wage Order No. 16 governs ASL’s obligation to
provide meal and rest breaks to its employees.
“State law obligates employers to afford their nonexempt employees meal periods
. . . during the workday.” (Brinker, supra, 53 Cal.4th at p. 1018; Wage Order No. 16,
subd. 10.) Generally, an employer must provide an employee “a first meal period no later
than the end of an employee’s fifth hour of work, and a second meal period no later than
the end of an employee’s 10th hour of work.” (Brinker, at p. 1041; Wage Order No. 16,
subd. 10(A), (B).)
“Proof an employer had knowledge of employees working through meal periods
will not alone subject the employer to liability for premium pay; employees cannot
manipulate the flexibility granted them by employers to use their breaks as they see fit to
generate such liability. On the other hand, an employer may not . . . pressur[e]
employees to perform their duties in ways that omit breaks.” (Brinker, supra, 53 Cal.4th
at p. 1040.) Under Brinker, an employer satisfies its obligation to provide meal periods
“if it relieves its employees of all duty, relinquishes control over their activities and

17
permits them a reasonable opportunity to take an uninterrupted 30-minute break, and
does not impede or discourage them from doing so.” (Ibid.) Our Supreme Court has
emphasized that “[w]hat will suffice may vary from industry to industry, and we cannot
in the context of this class certification proceeding delineate the full range of approaches
that in each instance might be sufficient to satisfy the law.” (Ibid.)
An “employer is not obligated to police meal breaks and ensure no work thereafter
is performed. Bona fide relief from duty and the relinquishing of control satisfies the
employer’s obligations, and work by a relieved employee during a meal break does not
thereby place the employer in violation of its obligations and create liability for premium
pay . . . .” (Brinker, supra, 53 Cal.4th at pp. 1040-1041.) “A missed meal break does not
constitute a violation if the employee waived the meal break, or otherwise voluntarily
shortened or postponed it.” (Lampe v. Queen of the Valley Medical Center (2018)
19 Cal.App.5th 832, 851.)
“State law [also] obligates employers to afford their nonexempt employees . . . rest
periods during the workday.” (Brinker, supra, 53 Cal.4th at p. 1018; Wage Order No. 16,
subd. 11.) An employer must “ ‘authorize and permit all employees to take rest periods’
” at the rate of 10 minutes of rest for each four hours the employee works “ ‘or major
fraction thereof.’ ” (Brinker, at p. 1028; Wage Order No. 16, subd. 11(A).)
“If an employer fails to provide an employee [the required] meal or rest or
recovery period . . . the employer shall pay the employee one additional hour of pay at the
employee’s regular rate of compensation for each workday that the meal or rest or
recovery period is not provided.” (§ 226.7, subd. (c) ; Wage Order No. 16, subds. 10(F),
11(D).) An employer must keep accurate records of meal, but not rest, breaks. (Wage
Order No. 16, subd. 6(A)(1).) An employer governed by Wage Order No. 16 must keep a
copy of the order “posted in area frequented by employees where it may be easily read
during the workday.” (Wage Order No. 16, subd. (20).)

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 B. Additional Background
In the operative complaint, plaintiff alleged that ASL failed to provide employees
all meal and rest breaks, which was largely due to the scope of work required and ASL’s
policy of incentivizing the completion of more work, and that ASL failed to properly
compensate employees when they missed their breaks. Plaintiff alleged that ASL did not
have any written policies and did not provide any instructions to employees concerning
meal or rest breaks, but instead required them to work without taking all their breaks.
The meal break claim was predicated on a failure to provide theory, whereas the rest
break claim was predicated on a failure to authorize and permit theory. In his class
certification motion, plaintiff stated that his theory of liability as to his meal and rest
break claims was that “ASL failed to authorize and permit meal and rest periods by
failing to adopt compliant meal and rest period policies, resulting in unpaid meal and rest
period premiums.” He identified one common question of fact and one common question
of law as to his meal and rest break claims: whether ASL had a policy authorizing meal
and rest breaks, and whether an employer violates meal and rest break requirements by
failing to adopt a policy authorizing them to be taken by employees. He argued that “[a]
finding that ASL failed to adopt a lawful policy authorizing meal and rest periods will
establish liability on a class wide basis.”
The evidence presented in connection with the class certification motion showed
that ASL neither had a formal written policy authorizing or permitting meal or rest breaks
nor maintained any records reflecting when or whether employees took meal breaks
before implementation of TSheets, but rather assumed employees took their breaks. The
evidence further showed that TSheets was implemented at each of ASL’s branch
locations on different dates and employees clocked out for meal breaks after TSheets’
implementation. ASL submitted declarations indicating that supervisors at the West
Sacramento, Morgan Hill, and El Cajon branches told employees during the proposed
class period that they were authorized and permitted to take two paid 10 or 15 minute

19
breaks during a typical eight-hour day, generally in the morning and afternoon, and a 30-
minute unpaid meal period in the middle of a typical eight-hour shift, generally in the
middle of the day. As for the Stockton location, there was evidence that employees
regularly took a meal break of at least 30-minutes in the office of a supervisor during the
class period, and that the same supervisor reminded employees to take a meal break if he
noticed they had not taken a break within three to four hours of starting their shift. There
was also evidence that the applicable IWC Wage Order concerning meal and rest breaks
was posted at each of ASL’s branch locations in the break room or near the employee
timecards, that supervisors never told employees that they could not take breaks or that
they should continue to work through their breaks, and that employees could take breaks
whenever they wanted to. ASL also submitted declarations from two proposed class
members (one who worked in West Sacramento and one who worked in El Cajon), both
of whom stated that they regularly took their rest and meal breaks and saw other
employees take breaks. While plaintiff submitted declarations from several proposed
class members7 stating in nearly identical language that there were numerous occasions
when they were unable to take their meal and rest breaks or an entire 30-minute meal
break due to the amount of work ASL expected them to complete, 8 none of those
individuals stated that their supervisors did not inform them of their right to take meal
and rest breaks during a typical eight-hour shift or that they were otherwise unaware of
their right to do so. Nor did any of the employees state that they missed their meal and
rest breaks every day, or that when they missed these breaks, it was ASL’s decision

7 Plaintiff submitted five declarations from proposed class members, including his own
and a declaration from one employee from each of the branch locations.
8 Each of the declarants also stated that they did not receive a second meal break or third
rest break when they worked more than 10 hours, they were unaware that they were
entitled to such breaks, and they never received compensation for missed breaks.

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rather than their own. Notably, there was evidence showing that a supervisor at the El
Cajon location began providing certain employees (mechanics) with a written “policy”
summarizing meal and rest break rules in 2017, and that one of plaintiff’s declarants
signed this document in July 2018. There was also evidence (a declaration from a
proposed class member) indicating that plaintiff regularly took meal and rest breaks
during the class period.
In denying class certification as to plaintiff’s proposed meal and rest break
subclasses, the trial court stated: “[D]etermination of these claims on a class-wide basis
would require inquiry as to what each employee was told in addition to what was set forth
in the IWC wage order. Moreover, the issue of waiver is also relevant to these claims,
and an individual inquiry would be necessary, at least prior to March 2018, 9 to establish
whether each employee actually took their breaks and why.” (Footnote added.)
C. Analysis
We disagree with plaintiff’s initial contention that reversal is required because the
trial court improperly assessed the propriety of class certification under the wrong theory
of liability. As we have noted, plaintiff’s theory was based on ASL’s “fail[ure] to
authorize and permit meal and rest periods by failing to adopt compliant meal and rest
period policies, resulting in unpaid meal and rest period premiums.” The record reflects
that the court understood this theory, but determined that class certification was not
warranted due to the predominance of individual issues.
Nor was ASL’s mere failure to adopt a written, uniform meal and rest break policy
sufficient to justify class certification. While some courts have held in the wage and hour

9 As we have noted, the record reflects that ASL employees began clocking out for meal
breaks at different times during the proposed class period; employees at the Stockton
location began doing so around March 2018, while employees at the El Cajon branch
began doing so as early as June 2017.

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context that the absence of a uniform policy supports certification if such a policy is
required by law (see, e.g., Benton v. Telecom Network Specialists, Inc. (2013)
220 Cal.App.4th 701, 724-725 [failure to adopt policy authorizing meal and rest breaks];
Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1150-1151 [same]) ,
our Supreme Court has yet to decide this question (see Duran, supra, 59 Cal.4th at p. 31,
fn. 28.)10 Plaintiff provides no discussion of Benton or Bradley and neither case stands
for the general proposition that a lack of a uniform, written meal and break policy
justifies certification, regardless of the circumstances presented. Indeed, the existence of
a uniform policy (or lack of such) does not end the inquiry as to whether a proposed class
is suitable for class treatment in meal and rest break cases. A plaintiff must establish that
their theory of legal liability can be resolved on a class-wide basis through common facts
and law. (See Koval v. Pacific Bell Telephone Co. (2014) 232 CalApp.4th 1050, 1060-
1063 [existence of written, uniform rest and meal break policies insufficient to support
certification where supervisors differed in how they implemented policies].) While the
Brinker court observed that “a uniform policy consistently applied” can support class
certification, (Brinker, supra, 53 Cal.4th at p. 1033) it did not say that a wage and hour
claim must proceed as a class action when it involves a uniform policy. As Brinker
instructs: “Presented with a class certification motion, a trial court must examine the
plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to
be presented, and decide whether individual or common issues predominate.” (Id. at p.
1025.) The record reflects that the trial court adhered to these principles and found that
class certification was not warranted due to the predominance of individual issues. We

10 We note that a federal district court has concluded that the failure to adopt a meal and
break policy consistent with California law is not a violation of the law. (See Cole v.
CRST, Inc. (C.D.Cal. 2016) 317 F.R.D. 141, 144 [finding that an employer’s only
affirmative obligation is to notify employees of meal and rest break rules, which was
fulfilled by posting of rules at jobsite].)

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see no abuse of discretion; the evidence did not show a uniform policy or practice
consistently applied to all employees.
Plaintiff adds that by assessing certification solely from a “failure to relieve”
theory the trial court made an “inherent merits determination” that ASL was not required
to adopt any formal policy authorizing meal and rest periods in order to comply with its
legal obligation to provide such breaks. We disagree that the court made a legal
determination as to merits; rather, as we have explained, it found that class certification
was improper due to the predominance of individual issues.
Lastly, we find no merit in plaintiff’s contention that reversal is required because
the trial court incorrectly assumed that time records showing no meal periods were taken,
or non-compliant meal periods, are insufficient to establish a prima facie case of liability.
Where an employer fails to provide time records showing that a meal break was taken, a
rebuttable presumption arises that the employee was not offered such a break. In that
case, an employer’s claim that a break was in fact offered but the employee declined it, is
an affirmative defense that the employer must prove. (See Donohue v. AMN Services,
LLC (2021) 11 Cal.5th 58, 74-76 [explaining that “waiver” in this context means that an
employee chose to work when he or she was not required to].) Here, the court
determined that individual issues arising from ASL’s affirmative defense of waiver and
other factors precluded certification. That decision was within the court’s discretion.
(See Duran, supra, 59 Cal.4th at pp. 28-29 [“In certifying a class action, the court must
also conclude that litigation of individual issues, including those arising from affirmative
defenses, can be managed fairly and efficiently”].)
Because we find no reversible error with respect to plaintiff’s rounding claim and
meal and rest break claims, there is no basis to reverse as to his derivative claims, and we
need not consider the parties’ remaining arguments.

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 DISPOSITION
The order denying class certification is affirmed. ASL is awarded its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/
Duarte, J.

We concur:

/s/
Blease, Acting P. J.

/s/
Robie, J.

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