©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 147 385 Id. at 326 (trial courts “are afforded great discretion in granting or denying certification”). 386 Id. at 339. 387 Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1025 (2012) (“trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision”). 388 Faulkinbury v. Boyd & Assocs., 216 Cal. App. 4th 220, 232-35 (2013), held that unlawful break policies provided sufficient basis to find predominating common issues for purposes of class certification, even if the policy was not uniformly applied. The Court of Appeal suggested that whether an employee was actually denied breaks was a damages question that did not preclude class certification. Id. at 235. Faulkinbury would be distinguishable where employers have legally compliant policies and practices. Benton v. Telecom Network Specialists, Inc., 220 Cal App. 4th 701, 726 (2013), held that an alleged joint employer’s lack of a lawful written policy on meal and rest breaks was a sufficient basis for certifying a class of technicians, even though many knew they could take breaks, and did so. The Court of Appeal held that the class could be certified on a theory that the defendant unlawfully failed to adopt a policy authorizing and permitting breaks. The theory was that the defendant, as an alleged co-employer, had to ensure that the technicians knew of their break rights. This suggestion that certification can rest on a theory that the defendant failed to adopt a formal break policy, even where the employees knew their rights and exercised them, is another example of a court liberally interpreting Brinker to the plaintiff’s advantage. The Supreme Court, in Ayala v. Antelope Valley Newspapers, 59 Cal. 4th 522 (2014), held that a uniform written contract under which a newspaper company engaged newspaper carriers as independent contractors could support a class action alleging that the company retained the right to control the manner of means of delivery, making the carriers employees who could assert various rights under the Labor Code. The Supreme Court held that whether the defendant actually exercised varying degrees of control over the carriers was immaterial, because the proper inquiry is whether the defendant had the contractual right to control the worker. 389 Donohue v. ANM Servs., LLC, 11 Cal. 5th 58, 75-76 (2021). 390 E.g., Altiery v. Granite Rock Co., No. H045263, 2021 WL 3825309 (Cal. App. 6th Aug. 27, 2021) (unpublished and not citable in California courts); Salazar v. See’s Candy Shops, Inc., 64 Cal. App. 5th (2021), review denied and ordered not to be officially published (Cal. Aug. 11, 2021); Cacho v. Eurostar, Inc., 43 Cal. App. 5th 885 (2019), review denied and ordered not to be officially published (Cal. Dec. 23, 2019); Tien v. Tenet Healthcare, 209 Cal. App. 4th 1077 (2012), review denied and ordered not to be officially published (Cal. Jan. 16, 2013); Flores v. Lamps Plus, 209 Cal. App. 4th 35 (2012), review denied and ordered not to be officially published (Cal. Dec. 12, 2013); Hernandez v. Chipotle Mexican Grill, 208 Cal. App. 4th 1487 (2012), review denied and ordered not to be officially published (Cal. Dec. 12, 2013). 391 Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1, 34-36 (2014). 392 Id. at 27 (“Class certification is appropriate only if these individual questions can be managed with an appropriate trial plan.”). 393 Id. at 29 (“Trial courts also have the obligation to decertify a class action if individual issues prove unmanageable.”) (citations omitted). 394 Duran v. U.S. Bank Nat’l Ass’n, 19 Cal. App. 5th 630 (2018). 395 Id. at 641. 396 Id. at 647. 397 Id. at 650-51. 398 McCleery v. Allstate Ins. Co., 37 Cal. App. 5th 434, 448 (2019) (affirming trial court’s conclusion that “plaintiffs’ proposed class action would not be superior to individual actions because their survey failed to address ‘all of the information needed for an accurate determination of liability,’ and the trial plan ‘deprive[d] defendants of the right of cross-examination and the ability to present their affirmative defenses”). 399 Id. at 453 (“plaintiffs expressly admit they intend to answer the ultimate question in this case based solely on expert testimony—testimony founded on multiple hearsay that defendants could never challenge.”). 400 Id. (quoting Korsak v. Atlas Hotels, Inc., 2 Cal. App. 4th 1516, 1525 (1992)). 401 McCleery, 37 Cal. App. 5th at 453 (citing Goldberg v. Kelly, 397, U.S. 254, 269-70 (1970)). 402 In re Williams-Sonoma, Inc., 947 F.3d 535, 540 (9th Cir. 2020) (“[respondent] contends that the information sought in discovery was relevant to class certification issues. … That does not undercut, or water down, the primary point that using discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1).”) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). 403 In re Williams-Sonoma, Inc., 947 F.3d at 540. The case involved a suit for misleading statements as to the thread count on bedding, but its general principles apply to an employment case. Williams-Sonoma has uncertain breadth, however, and may be limited to a case where the plaintiff’s discovery request is solely to find a new class representative. See Arredondo v. Sw. & Pac. Specialty Fin., Inc., 2019 WL 6128657, at *3 (E.D. Cal. Nov. 19, 2019) (“[D]istrict courts in th[e] [Ninth] Circuit have often found that as a general rule, before class certification has taken place, all parties are entitled to equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties. For that reason, discovery of the putative class members’ contact information is routinely allowed.”) (internal citations and quotations omitted); Martin v. Sysco Corp., 2017 WL 4517819, at *3 (E.D. Cal. Oct. 10, 2017) (“Disclosure of contact information for putative class members is a common practice in the class action context.”) (citing Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011)). 404 CashCall, Inc. v. Superior Ct. (Cole), 159 Cal. App. 4th 273, 290-91 (2008) (“We conclude the Parris balancing test should be applied by trial courts in exercising their discretion whether to grant or deny an original plaintiff’s precertification motion for discovery of the identities of class members regardless of whether that original plaintiff had standing at the beginning of the action.”) (citing Parris v. Superior Ct., 109 Cal. App. 4th 285, 300-01 (2003)).
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