Preview
13. Naudin (Trumbo) v. Lollicup‘ SUPE Fl L
CIVDS 1907992 cou'ii‘r’figgggfipaumw
SAN A
Motion for Class Certification BERNARowBoEglr‘s'Argomo
Icr
Tentative Ruling:
APR 0 4 Z
022
Deny. BY
J
Numerosity: A
LES,
UTY
Approximately forty-one individuals fall within the scope of the putative class as
defined by plaintiff. As such, the class is sufficiently numerous for certification. As
many as twelve, however, are likely to opt out if a class is certified, insofar as they have
already indicated, at least informally, that they do not want to be involved. Furthermore,
according to defendant, all but eight of the remaining individuals have arbitration
agreements. Therefore, defendant argues that the class, likely to comprise eight or
fewer individuals, is insufficiently numerous for certification.
But the likely number of opt-outs is still speculative, and the court has not
determined whether the arbitration agreements are enforceable. It would be improper
for the court to make any determination on enforceability as part of the class certification
motion, because such motions are procedural in nature and should not consider the
merits of the claims or affirmative defenses. (See Hendershot v. Ready to Roll Transp.,
Inc. (2014) 228 Cal.App.4th 1213, 1223.) If a class is certified and a substantial number
of class members opt out or a substantial number are found to have enforceable
arbitration agreements, such that the class is no longer numerous, defendant can bring
a motion to decertify the class at that time. As of now, the putative class is sufficiently
numerous for certification.
Tygicality:
Given the large number of putative classmembers with arbitration agreements,
the enforceability of those agreements will be a major threshold issue in the litigation. In
Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99, the court wrote:
That [the defendant] defense against cenain class members
may raise a
that would not apply does not defeat her standing, nor
to [the plaintiff]
does it make her claims not typical of the class. The typicality requirement
is meant to ensure that the class representative is able to adequately
represent the class and focus on common issues. [Citation] It is
only when a defense unique to the class representative will be a major
focus of the litigation [citation], that denial of class certification is
appropriate.
1
PlaintiffNaudin has been dismissed.
Page 2 of 5
CVSZ6040422
But plaintiff would not be able to challenge the enforceability of the agreements since
she did not sign one. An easy solution to this conundrum, however, would be to create
a subclass of those individuals with arbitration agreements and to appoint another
representative who has an arbitration agreement to represent that subclass. Subject to
appointment of an adequate representative for the subclass comprising those
individuals with arbitration agreements, plaintiff’s claims are typical of the class claims
because plaintiff alleges the same wage and hour violations for the entire class.
Adequacy of Representation:
Counsel is welI-qualified to represent the class. As for plaintiff, no conflict 0f
interest or other impediment demonstrates that she
inadequate as a representative.
is
Of course, any additional representative for the subclass would need to demonstrate his
or her own adequacy as well.
Commonality:
“The ultimate question in every [purported class action] is whether, given an
ascertainable class, 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.”
(Brown v. The Regents of the University of California (1984) 151 Cal.App.3d 982, 989.)
A central and threshold issue in this case is whether employees were
misclassified. The
assertion that a person is exempt from overtime compensation is an
affirmative defense, with the employer bearing the obligation of proving it. (Ramirez v.
Yosemite Water Co. (1999) 20 Cal.4th 785, 794-95; Kizer v. Tristar Risk Management
(2017) 13 Cal.App.5th 830, 847.) Ifthe defense will require individual inquiry, it can
defeat certification even ifthe underlying legal claim (i.e., unpaid overtime) can be
presented on a common basis. (Walsh v. IKON Office Solutions, Inc. (2007) 148
Cal.App.4th 1440, 1450 [“ln examining whether common issues of law or fact
predominate, [t]he affirmative defenses of the defendant must also be considered,
because a defendant may defeat class certification by showing that an affirmative
defense would be raise issues specific to each potential class member and that the
issues presented by that defense predominate over common issues."].)
Commonality on a misclassification inquiry can go either way depending on the
presentation of the evidence on the issue. (Mies v. Sephora U.S.A., Inc. (2015) 234
Cal.App.4th 967, 981.) Additionally, dominating common or individual inquiry will
depend on the nature of the claimed exemption and the facts of the particular case?
(Duran v. U.S. Bank NationaIAssn (2014) 59 Ca|.4th 1, 27.)
2
“California courts have been reluctant to certify class actions alleging misclassification."
(Duran v. U.S. Bank Nationa/Assn. (2014) 59 Cal.4th 1, 31 .)
Page 3 of 5
CV526040422
Preview
13. Naudin (Trumbo) v. Lollicup‘ SUPE Fl L CIVDS 1907992 cou'ii‘r’figgggfipaumw SAN A Motion for Class Certification BERNARowBoEglr‘s'Argomo Icr Tentative Ruling: APR 0 4 Z 022 Deny. BY J Numerosity: A LES, UTY Approximately forty-one individuals fall within the scope of the putative class as defined by plaintiff. As such, the class is sufficiently numerous for certification. As many as twelve, however, are likely to opt out if a class is certified, insofar as they have already indicated, at least informally, that they do not want to be involved. Furthermore, according to defendant, all but eight of the remaining individuals have arbitration agreements. Therefore, defendant argues that the class, likely to comprise eight or fewer individuals, is insufficiently numerous for certification. But the likely number of opt-outs is still speculative, and the court has not determined whether the arbitration agreements are enforceable. It would be improper for the court to make any determination on enforceability as part of the class certification motion, because such motions are procedural in nature and should not consider the merits of the claims or affirmative defenses. (See Hendershot v. Ready to Roll Transp., Inc. (2014) 228 Cal.App.4th 1213, 1223.) If a class is certified and a substantial number of class members opt out or a substantial number are found to have enforceable arbitration agreements, such that the class is no longer numerous, defendant can bring a motion to decertify the class at that time. As of now, the putative class is sufficiently numerous for certification. Tygicality: Given the large number of putative classmembers with arbitration agreements, the enforceability of those agreements will be a major threshold issue in the litigation. In Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99, the court wrote: That [the defendant] defense against cenain class members may raise a that would not apply does not defeat her standing, nor to [the plaintiff] does it make her claims not typical of the class. The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. [Citation] It is only when a defense unique to the class representative will be a major focus of the litigation [citation], that denial of class certification is appropriate. 1 PlaintiffNaudin has been dismissed. Page 2 of 5 CVSZ6040422 But plaintiff would not be able to challenge the enforceability of the agreements since she did not sign one. An easy solution to this conundrum, however, would be to create a subclass of those individuals with arbitration agreements and to appoint another representative who has an arbitration agreement to represent that subclass. Subject to appointment of an adequate representative for the subclass comprising those individuals with arbitration agreements, plaintiff’s claims are typical of the class claims because plaintiff alleges the same wage and hour violations for the entire class. Adequacy of Representation: Counsel is welI-qualified to represent the class. As for plaintiff, no conflict 0f interest or other impediment demonstrates that she inadequate as a representative. is Of course, any additional representative for the subclass would need to demonstrate his or her own adequacy as well. Commonality: “The ultimate question in every [purported class action] is whether, given an ascertainable class, 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.” (Brown v. The Regents of the University of California (1984) 151 Cal.App.3d 982, 989.) A central and threshold issue in this case is whether employees were misclassified. The assertion that a person is exempt from overtime compensation is an affirmative defense, with the employer bearing the obligation of proving it. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-95; Kizer v. Tristar Risk Management (2017) 13 Cal.App.5th 830, 847.) Ifthe defense will require individual inquiry, it can defeat certification even ifthe underlying legal claim (i.e., unpaid overtime) can be presented on a common basis. (Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450 [“ln examining whether common issues of law or fact predominate, [t]he affirmative defenses of the defendant must also be considered, because a defendant may defeat class certification by showing that an affirmative defense would be raise issues specific to each potential class member and that the issues presented by that defense predominate over common issues."].) Commonality on a misclassification inquiry can go either way depending on the presentation of the evidence on the issue. (Mies v. Sephora U.S.A., Inc. (2015) 234 Cal.App.4th 967, 981.) Additionally, dominating common or individual inquiry will depend on the nature of the claimed exemption and the facts of the particular case? (Duran v. U.S. Bank NationaIAssn (2014) 59 Ca|.4th 1, 27.) 2 “California courts have been reluctant to certify class actions alleging misclassification." (Duran v. U.S. Bank Nationa/Assn. (2014) 59 Cal.4th 1, 31 .) Page 3 of 5 CV526040422