Carbajal v. Imperial Maintenance Services CA3

Filed 5/5/22 Carbajal v. Imperial Maintenance Services 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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)
----

LIDIA CARBAJAL et al., C091617

Plaintiffs and Appellants, (Super. Ct. No. STK-CV-
UOE-2016-0001100)
v.

IMPERIAL MAINTENANCE SERVICES, INC., et
al.,

Defendants and Respondents.

This is an appeal from an order denying a request for class certification.
Appellants Lidia Carbajal, Guadalupe Beltran, and Ana Maria Sanchez sued their former
employer (Imperial Maintenance Services, Inc. or Imperial), Imperial’s owner, and
several former Imperial employees, alleging violations of various labor laws. In a motion
for class certification, Appellants sought class treatment for five of their claims. They
sought to certify one class consisting of Imperial employees who were allegedly not paid
for all hours worked, a second class of employees who were allegedly denied meal

1
breaks, a third class of employees who allegedly received inaccurate or incomplete wage
statements, a fourth class of employees who were allegedly not paid all wages due when
they were terminated, and a fifth class of employees who, due to the other alleged
violations, were allegedly subjected to unlawful or unfair business practices. To support
their motion for class certification, Appellants asserted, among other things, that because
Imperial’s records failed to show that its employees received meal breaks, the trial court
should presume that its employees did not in fact receive meal breaks.
The trial court ultimately declined to certify a class for any of these claims.
Without applying Appellants’ requested presumption for the meal break class, the court
concluded that resolving Appellants’ allegations for this class would require too many
individualized inquiries to be appropriate for class treatment. The court further
concluded that because Appellants’ allegations for the four remaining proposed classes
were largely tied to their allegations for the meal period class, those claims too would be
inappropriate for class treatment.
On appeal, Appellants contend the trial court improperly denied class certification
for their proposed classes because it failed to apply the required rebuttable presumption
for their proposed meal break class. We agree. In cases like this one, when an employer
has failed to document that its employees took meal breaks, the trial court must apply a
rebuttable presumption that no meal breaks were provided. But in this case, rather than
apply the required presumption, the trial court instead considered Appellants’ contentions
as if no presumption applied at all. Because this shortcoming undermined the court’s
reasoning for rejecting the proposed classes, we remand the case to the trial court for
further proceedings.
BACKGROUND
Imperial is a janitorial company that provides maintenance and cleaning services
at several government buildings in California. Respondent Alfonso Solis owns the

2
company and Respondents Erma Solis, Marc Lopez, and Maria Perez are former Imperial
employees.
Appellants Carbajal, Beltran, and Sanchez all formerly worked as janitors for
Imperial. Although all three started on different dates, they all were terminated on the
same date: May 29, 2015, when they were released for failing to provide documentation
establishing their right to work in the United States. Shortly after their termination,
Appellants filed a complaint that raised eight class action claims against Respondents and
one claim under the Labor Code Private Attorneys General Act of 2004 (Lab. Code,
§ 2698 et seq.).
Over three years later, Appellants moved for class certification of a class
consisting of all of Imperial’s current and former non-exempt janitors since February 2,
2012. They also sought class certification for five subclasses. First, Appellants sought to
certify a subclass consisting of all of Imperial’s current and former employees who were
allegedly not paid for all hours worked since February 2, 2012.
Second, Appellants sought to certify a subclass consisting of all of Imperial’s
current and former employees who were allegedly denied meal breaks since February 2,
2012. Appellants premised their argument in large part on Labor Code section 226.7 and
a wage order from the Industrial Welfare Commission that covers “persons employed in
the public housekeeping industry.” (Cal. Code Regs., tit. 8, § 11050, subd. 1.) Per Labor
Code section 226.7, subdivision (b), an employer cannot “require an employee to work
during a meal or rest or recovery period mandated pursuant to an applicable . . . order of
the Industrial Welfare Commission.” And per the cited wage order, an employer cannot
“employ any person for a work period of more than five (5) hours without a meal period
of not less than 30 minutes, except that when a work period of not more than six (6)
hours will complete the day’s work the meal period may be waived. . . .” (Cal. Code
Regs., tit. 8, § 11050, subd. 11(A).) According to Appellants, in violation of these laws,

3
Imperial’s employees worked for periods longer than five hours without receiving the
required 30-minute meal period, even though they had not waived their meal periods.
Lastly, Appellants sought to certify three additional subclasses that were
derivative of their unpaid wage and meal period subclasses. This included a subclass of
employees who allegedly received inaccurate or incomplete wage statements, a second
subclass of employees who were allegedly not paid all wages due when they were
terminated, and a third subclass of employees who were allegedly subjected to unlawful
or unfair business acts or practices within the meaning of Business and Professions Code
section 17200. Appellants contended these three categories of violations occurred
“because of the above core violations” concerning the unpaid wage and meal period
subclasses.
To support their motion for class certification, Appellants asserted, among other
things, that the trial court should presume that Respondents failed to provide the required
meal periods. They reasoned that because Respondents failed to maintain records
showing that employees received meal periods, the court should presume that employees
did not in fact receive meal periods. Appellants contended this followed from Justice
Werdegar’s concurrence in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004 (Brinker), in which she stated: “If an employer’s records show no meal period for a
given shift over five hours, a rebuttable presumption arises that the employee was not
relieved of duty and no meal period was provided.” (Id. at p. 1053 (conc. opn. of
Werdegar, J.).) Although Respondents disputed the application of this presumption, the
person who they designated as the person most qualified to testify about their practices,
Erma Solis, acknowledged that Imperial failed to document meal periods for employees.
After hearing from the parties, the trial court declined to certify Appellants’
proposed class and subclasses. It found “that the basis for each of the subclasses hinges
upon [Respondents’] purported rest and meal period violations.” It then found that
resolving Respondents’ purported rest and meal period violations would require too many

4
individualized inquiries. The court focused on four considerations: (1) Imperial
employees acknowledged receiving an employee handbook discussing their right to meal
and rest breaks, (2) employees “worked in multiple buildings, had varied schedules, and
although janitorial in nature, performed a variety [of] work tasks,” (3) employees “self-
reported their time,” and (4) employees “could take meals and breaks as needed” under
Imperial’s “honor system.” Based on these considerations, the court found “certification
of the requested subclasses [would be] improper because ‘the existence of damage, the
cause of damage, and the extent of damage [would] have to be determined on a case-by-
case basis.’ ” In reaching this decision, the court never acknowledged Appellants’
contention that Imperial’s employees should be presumed to have been denied their meal
breaks.
Appellants timely appealed.
DISCUSSION
I. Class Certification Principles
To support class treatment, a party seeking certification of a class action “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, supra, 53 Cal.4th at p. 1021;
see also Code Civ. Proc., § 382.) The second of these requirements—“a well-defined
community of interest”—embodies three additional requirements of its own:
“ ‘ “(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.]” (Brinker, at p. 1021)
This case focuses on only one of these several requirements—namely, the moving
party’s need to show there are questions of law or fact common to the class. In
examining whether a party has made this showing, courts consider “ ‘whether the theory
of recovery advanced by the proponents of certification is, as an analytical matter, likely

5
to prove amenable to class treatment.’ [Citation.]” (Brinker, supra, 53 Cal.4th at
p. 1021.) Courts also, when making this determination, consider the defendant’s
affirmative defenses, “because a defendant may defeat class certification by showing that
an affirmative defense would raise issues specific to each potential class member and that
the issues presented by that defense predominate over common issues.” (Walsh v. IKON
Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450 (Walsh); see also Duran v. U.S.
Bank National Assn. (2014) 59 Cal.4th 1, 28-30 [defenses raising individual questions
may defeat class certification].)
We review a trial court’s ruling on a certification motion “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.]” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530
(Ayala).) In conducting this review, we consider “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.” (Ibid.) “In this respect,
‘ “appellate review of orders [granting or] denying class certification differs from
ordinary appellate review. Under ordinary appellate review, we do not address the trial
court’s reasoning and consider only whether the result was correct.” ’ ” (McCleery v.
Allstate Ins. Co. (2019) 37 Cal.App.5th 434, 450.) But when reviewing an order granting
or denying class certification, we “ ‘review only the reasons given by the trial court for
[the grant or] denial of class certification, and ignore any other grounds that might
support [the grant or] denial.’ [Citation.]” (Ibid.)
II. Meal Period Subclass
Appellants first assert that the trial court improperly declined to certify their meal
period subclass. Their argument is twofold. They contend “[t]he trial court abused its
discretion in misunderstanding and misapplying the law regarding the effect of
individualized damages at the class certification stage.” They also contend the trial court

6
abused its discretion when it declined to apply the presumption first described in Justice
Werdegar’s Brinker concurrence and, more recently, in Donohue v. AMN Services,
LLC (2021) 11 Cal.5th 58 (Donohue).
We address each of these arguments in turn, starting with Appellants’ contention
that the trial court “misappl[ied] the law regarding the effect of individualized damages at
the class certification stage.” In Appellants’ telling, the court wrongly concluded that
individualized damages sufficed to defeat class certification. We find differently.
Courts, it is true, have long “recognized that the need for individualized proof of damages
is not per se an obstacle to class treatment.” (Sav-On Drug Stores, Inc. v. Superior
Court (2004) 34 Cal.4th 319, 334-335 (Sav-On Drug Stores).) But the trial court here did
not, as Appellants claim, deny certification on the ground that “damages would have to
be determined on a case-by-case basis.” It instead denied certification because, quoting
Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110 at page 119, it found “ ‘the
existence of damage, the cause of damage, and the extent of damage would have to be
determined on a case-by-case basis.’ ” It also emphasized that “[t]his is not an instance
wherein the only difference between [Appellants] and the potential class members is
simply a matter of []calculating damages.”
We turn next to Appellants’ argument premised on Brinker and Donohue. The
court in Donohue, as relevant here, found that when an employer fails to document that
its employees received meal breaks, a rebuttable presumption arises that its employees
did not in fact receive meal breaks. (Donohue, supra, 11 Cal.5th at pp. 74, 76.) In
reaching this decision, which it issued shortly after the trial court’s decision here, the
court built on Justice Werdegar’s earlier concurrence in Brinker. In her concurrence
there, Justice Werdegar discussed a wage order that applies to “persons employed in the
public housekeeping industry.” (Cal. Code Regs., tit. 8, § 11050, subd. 1.) She noted
that employers covered by that wage order “have an obligation both to relieve their
employees for at least one meal period for shifts over five hours ([Cal. Code Regs., tit. 8,

7
§ 11050], subd. 11(A)) and to record having done so (id., subd. 7(A)(3) [‘Meal
periods . . . shall also be recorded.’]). (Brinker, supra, 53 Cal.4th at pp. 1052-1053 (conc.
opn. of Werdegar, J.).) She then concluded: “If an employer’s records show no meal
period for a given shift over five hours, a rebuttable presumption arises that the employee
was not relieved of duty and no meal period was provided.” (Id. at p. 1053.)
Almost a decade later, after various courts of appeal “cited approvingly to Justice
Werdegar’s analysis of the rebuttable presumption issue,” the Supreme Court in Donohue
“adopt[ed] her discussion of the rebuttable presumption in full” in a case involving a
different wage order that included similar meal period requirements. (Donohue, supra,
11 Cal.5th at pp. 75-76; Cal. Code Regs., tit. 8, § 11040, subds. 1, 7(A)(3).) The court
explained: “Because time records are required to be accurate, it makes sense to apply a
rebuttable presumption of liability when records show noncompliant meal periods. If the
records are accurate, then the records reflect an employer’s true liability; applying the
presumption would not adversely affect an employer that has complied with meal period
requirements and has maintained accurate records. If the records are incomplete or
inaccurate—for example, the records do not clearly indicate whether the employee chose
to work during meal periods despite bona fide relief from duty—then the employer can
offer evidence to rebut the presumption. It is appropriate to place the burden on the
employer to plead and prove, as an affirmative defense, that it genuinely relieved
employees from duty during meal periods.” (Donohue, at p. 76.)
In this case, Appellants contend the presumption first described in Justice
Werdegar’s Brinker concurrence, and later adopted “in full” by the Donohue court,
applies and mandates reversal of the trial court’s decision on the meal period subclass.
We agree.
We start with the applicability of the Donohue presumption. This case concerns
the same types of facts that initially led Justice Werdegar to describe this presumption in
Brinker. It deals with the same wage order that applied in Brinker—which, again, applies

8
to people, like janitors, “employed in the public housekeeping industry.” (Cal. Code
Regs., tit. 8, § 11050, subd. 1.) And it deals with the same factual scenario described in
Brinker—which, again, was one where “an employer’s records show[ed] no meal period
for a given shift over five hours.” (Brinker, supra, 53 Cal.4th at pp. 1052-1053 (conc.
opn. of Werdegar, J.) On those types of facts, facts like in this case, Justice Werdegar
concluded (and the full court later agreed) that “a rebuttable presumption arises that the
employee was not relieved of duty and no meal period was provided.” (Id. at p. 1053; see
Donohue, supra, 11 Cal.5th at p. 75.)
Respondents, favoring a different finding, claim that the Donohue presumption
only applies in cases “involv[ing] a motion for summary judgment, not a motion for class
certification.” They are wrong. The Donohue court, it is true, established its
presumption in a case involving a motion for summary judgment. (Donohue, supra,
11 Cal.5th at p. 74.) But the court derived this presumption from a case, Brinker, that
involved a motion for class certification. (Id. at p. 75; see Brinker, supra, 53 Cal.4th at
p. 1017.) And the court made clear that the same presumption applies both at the
summary judgment stage and the class certification stage, stating that “the presumption
goes to the question of liability and applies at the summary judgment stage, not just at the
class certification stage.” (Donohue, at p. 76.)
We further find that this presumption mandates reversal in this case. As even
Respondents concede in their briefing, “the trial court did not decide . . . whether
Imperial had the burden to rebut the presumption of any violations.”1 It simply preceded
as if no presumption existed at all. And it did so even though Appellants requested this

1 Taking a different approach at oral argument, Respondents contend the trial court
considered the Brinker concurrence “very carefully” and, in effect, “did apply the
[Donohue] presumption.” But we find differently. The trial court never once referenced
or cited the Brinker concurrence. Nor did it ever allude to the presumption discussed in
this concurrence.

9
presumption and even though, at the time of the court’s decision, several Courts of
Appeal had already adopted the presumption that Justice Werdegar described in her
Brinker concurrence. (See, e.g., ABM Industries Overtime Cases (2017) 19 Cal.App.5th
277, 311; Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1159-1160; see
also Donohue, supra, 11 Cal.5th at p. 75 [listing courts that “have cited approvingly to
Justice Werdegar’s analysis of the rebuttable presumption issue”].)
Because we find the trial court failed to follow the correct legal analysis when
deciding whether to grant or deny class certification, we find reversal necessary. After
all, “[i]f the trial court failed to conduct the correct legal analysis in deciding not to
certify a class action, ‘ “an appellate court is required to reverse an order denying class
certification . . . ‘even though there may be substantial evidence to support the court’s
order.’ ” ’ [Citation.]” (Alberts v. Aurora Behavioral Health Care (2015)
241 Cal.App.4th 388, 399; see also Ayala, supra, 59 Cal.4th at p. 530 [if the court’s
“reasons for granting or denying certification. . . are erroneous, we must reverse, whether
or not other reasons not relied upon might have supported the ruling”].)
Although Respondents assert that the trial court’s failure to apply the Donohue
presumption can be overlooked, we find their reasoning unpersuasive. Respondents note,
correctly, that “an appellate court cannot reverse ‘simply because some of the court’s
reasoning was faulty, so long as any of the stated reasons justify the order.’ ” (See Davis-
Miller v. Automobile Club of Southern California (2011) 201 Cal.App.4th 106, 121.)
They then claim that “the trial court gave several reasons justifying its denial of class
certification” that “had nothing to do with the legal issues addressed in Donohue,”
including “that a ‘particularized individual liability determination’ was necessary, that
[Appellants] failed to meet their evidentiary burden, and that the ‘existence of damage,
the cause of damage, and the extent of damage’ required case-by-case inquiries.”
But, unlike Respondents, we find the trial court’s failure to apply the required
presumption undermined the whole of its analysis. The trial court, it is true, concluded

10
that a “particularized individual liability determination” would be necessary, that
Appellants failed to show that Respondents’ policies led to a common “wage and hour
violation,” and that “ ‘the existence of damage, the cause of damage, and the extent of
damage [would] have to be determined on a case-by-case basis.’ ” But had the court
presumed meal period violations, it could not have reached these conclusions absent a
finding that the presumption had been rebutted. After all, absent this finding of an
adequate rebuttal, the court would not only have needed to conclude that employees who
worked longer than five hours failed to receive the required meal period; it also would
have needed to conclude that the existence of damage and the cause of damage could
easily be proved through common proof—namely, through a review of timekeeping
records showing employees who worked longer than five hours. And although the extent
of damage for each employee would surely vary under this scenario, with different
employees having different numbers of shifts longer than five hours, “individualized
proof of damages is not per se an obstacle to class treatment.” (Sav-On Drug Stores,
supra, 34 Cal.4th at pp. 334-335.)
For these reasons, we find reversal appropriate to allow the trial court to reevaluate
whether to certify the meal period subclass. (See Ayala, supra, 59 Cal.4th at p. 530; see
also Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System (2021)
141 S.Ct. 1951, 1961 [vacating a Second Circuit decision affirming certification of a
class action because the court’s opinion “le[ft the Supreme Court] with sufficient doubt”
whether the court “properly considered” certain evidence].) But we stop short of finding,
as Appellants argue, that Donohue necessarily requires class treatment in this case. In
Appellants’ reading of Donohue, the decision not only creates a rebuttable presumption
of violations when an employer fails to document meal periods; it also creates an
irrebuttable presumption when an employer “abrogate[s] [its] recordkeeping
responsibilities.” Appellants, in other words, appear to believe that Donohue creates both
a rebuttable presumption and an irrebuttable presumption when an employer fails to

11
document meal periods. We reject this nonsensical reading of the case. The court in
Donohue described only a rebuttable presumption (Donohue, supra, 11 Cal.5th at p. 78),
not any irrebuttable presumption, and we leave it to the trial court to consider in the first
instance whether Respondents can rebut this presumption on remand.
III. Unpaid Time Subclass
Appellants next assert that the trial court improperly declined to certify their
unpaid time subclass. As they note, the trial court found the proposed unpaid time
subclass inappropriate for class treatment because it “hinge[d] upon [Respondents’]
purported rest and meal period violations” and because resolving Respondents’ purported
rest and meal period violations would require a case-by-case evaluation of “ ‘the
existence of damage, the cause of damage, and the extent of damage.’ ” Considering the
court’s reasoning, Appellants contend that because the trial court rejected part of the
unpaid time subclass for the same reason it rejected the meal period subclass, its decision
concerning the unpaid time subclass must fall if its decision concerning the meal period
subclass itself falls.
We agree. Although Respondents argue that, to succeed on this point, Appellants
needed to show the trial court’s reasoning flawed in its discussion both of the alleged
meal period violations and the alleged rest break violations, we find differently. The trial
court rejected part of the unpaid time subclass on the same flawed ground that it rejected
the meal period subclass, and it offered no alternative ground for rejecting this part of the
unpaid time subclass. For that reason, the trial court’s decision on this subclass must be
reversed to allow further review. (See Ayala, supra, 59 Cal.4th at p. 530 [trial court
abuses its discretion when it rules based on an erroneous legal assumption].)
IV. Remaining Three Subclasses
Lastly, and similarly, Appellants assert that the trial court improperly declined to
certify their remaining three subclasses, which were all derivative of their other proposed
subclasses. We agree here too. Again, as with the proposed unpaid time subclass, the

12
trial court found these three derivative subclasses were inappropriate for class treatment
because they “hinge[d] upon [Respondents’] purported rest and meal period violations”
and because resolving Respondents’ purported rest and meal period violations would
require a case-by-case evaluation of “ ‘the existence of damage, the cause of damage, and
the extent of damage.’ ” But for the reasons discussed above, we find the trial court
rejected part of these subclasses on the same flawed ground that it rejected the meal
period subclass. We thus conclude that the court’s decision on these subclasses must be
reversed to allow further review. (See Ayala, supra, 59 Cal.4th at p. 530 [trial court
abuses its discretion when it rules based on an erroneous legal assumption].)
DISPOSITION
The court’s order denying class certification is reversed. We remand to allow the
trial court to reconsider Appellants’ motion for class certification. Appellants are entitled
to recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

\s\ ,
BLEASE, Acting P. J.

We concur:

\s\ ,
ROBIE, J.

\s\ ,
MAURO, J.

13