•

•caseNo$1887 55

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA

e

e·

ROGELIO HERNANDEZ,Plaintiff-Petitioner

v.

SUFREiviE COURT

FILED

DEC - 7 2010

•

•

CHIPOTLE MEXICAN GRILL INC., Frederick K. Ollinch ClerkDefendant-Respondent.

________________________D.....Jeputy

Petition for Review of a Decision of the Court of Appeal, Second Appellate.District, Division Eight, Case Number B216004, affirming an order of theSuperior Court of California, County of Los Angeles, Case No. BC373759,

Hon. Terry A. Green

PETITION FOR REVIEW

•

•

•

MICHAEL RUBIN (SBN 80618)JAMES M. FINBERG (SBN 114850)EVE CERVANTEZ (SBN 164709)DANIELLE E. LEONARD (SBN 218201)Altshuler Berzon LLP177 Post Street, Suite 300San Francisco, California 94108Telephone: (415) 421-7151Facsimile: (415) 362-8064

MATTHEW J. MATERN (SBN 159798)DOUGLAS W. PERLMAN (SBN 167203)PAUL J. WEINER (SBN 111167)Rastegar & Matern, Attorneys At Law1010 Crenshaw Boulevard, Suite 100Torrance, CA 9050 ITelephone: (310) 218-5500Facsimile: (310) 218-1155

•Attorneys for Plaintiff-Petitioner Rogelio Hernandez

•

•

•

•

•

Case No. ----

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA

ROGELIO HERNANDEZ,Plaintiff-Petitioner

v.

CHIPOTLE MEXICAN GRILL INC.,Defendant-Respondent.

Petition for Review of a Decision of the Court of Appeal, Second Appellate.District, Division Eight, Case Number B216004, affirming an order of theSuperior Court of Califomia, County of Los Angeles, Case No. BC373759,

Hon. Terry A. Green

PETITION FOR REVIEW

•

-.

MICHAEL RUBIN (SBN 80618)JAMES M. FINBERG (SBN 114850)

. EVE CERVANTEZ (SBN 164709)DANIELLE E. LEONARD (SBN 218201)Altshuler Berzon LLP177 Post Street, Suite 300San Francisco, California 94108Telephone: (415) 421-7151Facsimile: (415) 362-8064

MATTHEW J. MATERN (SBN 159798)DOUGLAS W. PERLMAN (SBN 167203)PAUL J. WEINER (SBN 111167)Rastegar & Matern, Attorneys At Law1010 Crenshaw Boulevard, Suite 100Torrance, CA 90501Telephone: (310) 218-5500Facsimile: (310) 218-1155

•

•

Attorneys for Plaintiff-Petitioner Rogelio Hernandez

•

•

•

•

•

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

INTRODUCTION 1

ISSUES PRESENTED FOR REVIEW 5

PROCEEDINGS BELOW ~ 6 .

REASONS WHY REVIEW SHOULD BE GRANTED 11

I. GRANT-AND-HOLD REVIEW IS NECESSARY TO ENSUREUNIFORMITY OF DECISION WITH RESPECT TO THEPROPER LEGAL STANDARD PENDING THIS COURT'SDECISION IN BRiNKER 11

•

II. PLENARY REVIEW SHOULD BE GRANTED TO RESOLVEIMPORTANT LEGAL ISSUES REGARDING CLASSCERTIFICATION AND BURDENS OF PROOF THAT WILLPERSIST AFTER BRINKER. . 13

•

•

•

•

•

A.

B.

C.

This Court Should. Grant Review Because the Court ofAppeal's Holding Conflicts With a Long-Standing PrecedentShifting the Burden of Proof to an Employer That Fails toKeep Accurate Records of Employee Time ' . . 17

The Court Should Grant Review Because the Court ofAppeal's Conclusion that Resolving the Accuracy ofChipotle's Records of Missed Breaks WOliid Require"Thousands of Mini Trials" Conflicts with EstablishedAuthority that Allows Proof by RepresentativeTestimony ',." 23

The Court Should Grant Review Because the Court ofAppeal's Decision to Allow Individualized Defenses toDefeat Class Certification.Conflicts with StandardsEstablished by this Court 28

•

•

•

•

•

•

•

•

•

•

III. REVIEW IS NECESSARY BECAUSE THE COURT OF APPEALERRED IN HOLDING THAT THE SPECULATIVE POSSIBILITYOF A TESTIMONIAL CONFLICT,CREATED SUFFICIENTINTRA-CLASS "ANTAGONISM" TO PRECLUDE CLASSCERTIFICATION.. . 30

CONCLUSION 35

11

•

•

•

•

•

•

•

•

•

•

•

TABLE OF AUTHORITIES

CALIFORNIA CASES

Aguiar v. Cintas Corp. No.2,(2006) 144 Cal.App.4th 121 20,31,33

Amaral v. Cintas Corp. No.2,(2008) 163 Cal.App.4th 1157 20, 22 .

Bell v. Farmers Insurance Exchange(2004) 115 Cal.App.4th 715 25, 26

Cicairos v. Summit Logistics,(2005) 133 Cal.App.4th 949 12, 16,20,22

Daniels v. Centennial Capital, Inc.,(1993) 16 Cal.App.4th 467 31

Franco v. Athens Disposal Co.,(2009) 171 Cal.App.4th 1277 17, 21

Gentry v. Superior Court,(2007) 42 Cal.4th 443 , 21

Ghazaryan v. Diva Limousine, Ltd.,(2008) 169 Cal.App.4th 1524 19,22

Hernandez v. Mendoza,(1988) 199 Cal.App.3d 721 ~ passim

Jaimez v. Daihos USA,(2010) 181 CaLApp.4th 1286 13, 16

Lee v. Dynamex, Inc., .(2008) 166 Cal.App.4th 1325 33

Linder v. Thrifty Oil Co.,(2000) 23 Cal. 4th 429 10

III

•

•

•

•

•

•

•

•

•

•

•

Martinez v. Combs,(2010) 49 Ca1.4th 35 ; , : 34

Murphy v. Kenneth Cole Productions, Inc.,(2007) 40 Ca1.4th 1094 7

National Solar Equipment Owners' Assocs., Inc. v. Grumman Corp.,(1992) 235 Ca1.App.3d 1273 31, 33

Reynolds v. Bement,(2005) 36 Ca1.4th 1075· 34

Richmond v. Dart Industries,(1981) 29 Ca1.3d 462 31, 33

Sav-On Drug Stores, Inc. v. Superior Court,(2004) 34 Ca1.4th 319 passim

Vasquez v. Superior Court,(1971) 4 Ca1.3d 800 : .. : 28

FEDERAL CASES

Adoma v. Univ. ofPhoenix,(E.D. Cal. 2010) 2010 WL 3431804 26

Anderson v. Mt. Clements Pottery Co.,(1946) 328 U.S. 680 20,2~25

Blackwell v. Skywest Airlines, Inc.,(S.D. Cal. 2007) 245 F.R.D. 453 33

Brown v. Federal Express Corp.,. (C.D. Cal. 2008) 249 F.R.D. 580 12, 13

In re Chevron US.A. Inc.,(1997) 109 F.3d 1016 27

Cornn v. United Parcel Service, Inc.,(N.D. Cal. 2005) 2005 WL 588431 26

IV

•

•

•

•

•

•

•

•

•

•

•

Dilts v. Penske Logistics LLC,(S.D. Cal. 2010) 267 F.R.D. 625 26

Kenny v. Supercuts,(N.D. Cal. 2008) 252 F.R.D. 641 20,21

Kimoto v. McDonalds Corp.,(C.D. Cal. Aug. 19,2008) 2008 WL 4690536 13, 14

Lopez v. G.A. T Airline Ground Support,(S.D. Cal. Sept. 13,2010) 2010 WL 3633177 13

Marshall v. Holiday Magic,(9th Cir. 1977) 550 F.2d 1173 33

Salazar v. Avis Budget Group,(S.D. Cal. 2008) 251 F.R,D. 529 : 13

Wang v. Chinese Daily News,(9th Cir. 2010) 623 F.3d 743 16

White v. Starbucks Corp.,(N.D. Cal. 2007) 497 F.Supp.2d 1080 12, 13

DOCKETED CASES

Bradley v. Networkers Intern. LLC,Sup. Ct. No. S171257 (May 13,2009) 1

Brinkley v. Public Storage, Inc.,Sup. Ct. No. S168806 (January 14,2009) 1

Brinker Restaurant Corp. v. Superior Court,Sup. Ct. No. S166350 (October 22,2008) passim

Brookler" v. Radioshack Corp.,Sup. Ct. No. S18,6357 (November 17, 2010) 1

Faulkinbury v. Boyd & Associate,Sup.Ct. No. S184995 (October 13,2010) 1

v

•

•

•

•

•

•

•

•

•

•

•

REGULATIONS

8 Cal. Code Regs. tit. 8, §§11010-170 17

STATUTES

Cal. Labor Code § 226.7 1, 7

Cal. Labor Code § 512 1

IWC WAGE ORDERS.

IWC Wage Order 5-2001 . " 1, 7, 8,17

VI

•

•

•

•

•

•

•

•

•

•

•

INTRODUCTION

Plaintiff Rogelio Hernandez petitions for review of the Court of

Appeal's decision, certified for publication on October 28,2010, which

affirmed the trial court's denial of class certification in this case challenging

Chjpotle Mexican Grill's failure to compensate its low-wage restaurant

workers for missed meal periods and rest breaks under Labor Code §226.7

and §512 and IWC Wage Order 5-2001 §§11-12.

The threshold legal issue raised by this Petition is identical to the

issue before this Court in Brinker Restaurant Corp. v. Superior Court, No.

S166350, review granted October 22, 2008, and in each of the four post-

Brinker meal-and-rest-break cases in which this Court has granted review

and deferred further briefing: What standards govern an employer's

obligation to provide meal periods and rest breaks to employees under the

Labor Code and applicable IWC Wage Orders?lI In this case, as in Brinker,

the Court of Appeal held that employers need only "provide, i.e., authorize

and permit" meal periods and rest breaks, and have no legal obligation to

1I See Brinkley v. Public Storage, Inc., No. S168806, review granted and. briefing deferred January 14,2009; Bradley v. Networkers Intern. LLC, No.S171257, review granted and briefing deferred May 13, 2009; Faulkinburyv. Boyd & Assoc., No. S184995, r~view granted and briefing deferredOctober 13,2010; Brookler v. Radioshack Corp., No. S186357, reviewgranted and briefing deferred November 17, 2010.

1

•

•

•

•

•

•

•

•

•

•

ensure that such breaks are actually taken. Exhibit A at 2, 9-13.Y

Because the threshold legal issue in this case is the same as in

Brinker and the post-Brinker grant-and-hold cases, the Court should at a

minimum issue a grant-and-hold order pursuant to Rule of Court

8.512(d)(2). Vacating the Court of Appeal's decision in light of the

pendency ofBrinker is particularly appropriate given the trial court's

acknowledgment that it would Have granted class certification had it been

required to apply an "ensure" standard to plaintiffs meal period claims.

See Ex. A at 6-7 (emphasis in original) ("The trial court stated that if the

Supreme Court [holds in Brinker that] employers had to ensure employees

take breaks, class action treatment of this case would be appropriate.").

Although the Court has not granted plenary review in the other post-

Brinker cases, there are compelling reasons why it should order full merits

briefing here, given the particular issues raised and how they are presented.

For, no matter what standard this Court adopts in Brinker, this case will still

squarely raise four important, commonly recurring employment law issues

as to which the appellate courts are in considerable conflict:

'l:./ The Court of Appeal's October 28,2010 published opinion is attached asExhibit A. Its September 30, 2010 unpublished opinion is attached asExhibit B. The Los Angeles Superior Court order denying classcertification (Green, J.) is attached as Exhibit C.

2

•

•

•

•

•

•

•

•

e

e.

e

1. How should the burden of proof be allocated in an employment

case when the employer's liability rests upon the accuracy of its own time

records (including records that California law requires the employer to

maintain)? See infra at 17-23.

2. Regardless of who bears the burden of proof, mayan employer

insist upon individualized worker-by-worker and break-by-break testimony

to establish whether its time records are accurate in documenting which

breaks were actually missed? See infra at 23-27.

3. In an employment class action, maya plaintiff satisfy the

threshold showing necessary for certification by showing that classwide·

liability may be established by the employer's time records coupled with

evidence of uniform workplace practices and policies, where the employer

proposes to defend by conducting a worker-by-worker, time record-by-time­

record inquiry into the accuracy of its records? See infra at 28-30.

4. Under what circumstances (if any) does the speculative possibility

of testimonial conflict among class members at trial constitute sufficient

grounds for denying class certification? See infra at 30-35.

Like many California employers, Chipotle has a "tap on the

shoulder" break policy, which prohibits crew members from taking a break

unless and until their supervisor directs them to clock out for the break, and

3

•

•

•

•

•

•

•

•

•

•

•

employees are not permitted to choose to work through a break. Ex. A at 2;

App. Vol 4, 839. In such cases, the only time a break can be missed is

when a supervisor fails to tell the affected worker to take the break - which

effectively means the employer has "prohibited" that particular break,

which would be unlawful no matter what standard is adopted in Brinker.

Consequently, this case also directly raises the recurring question ­

addressed in many Court of Appeal decisions, but never by this Court - of

the extent to which workers may rely on their employers' time records and

on reasonable inferences drawn from those records, in establishing a

statutory wage and hour violation. This case also raises fundamental

qllestions about when, in the class action context, plaintiffs may rely on

time records coupled with representative testimony, as opposed to

individualized worker-by-worker testimony focusing on each break alleged

to have been missed.

Because this case squarely raises the next set of issues that will have

to be resolved after Brinker - which is how to determine which breaks were

missed and whether an employer's challenge to the accuracy of its own time

records creates individualized issues that preclude class certification - this

Court should grant review and order full merits briefing, to secure

uniformity and provide guidance to lower courts faced with similar

4

•

•

•

•

•

•

•

•

•

•

•

workplace policies in which the employer's liability depends upon the

accuracy of its own time records. Plenary review is therefore warranted

under Rule of Court 8.500(b)(1) to "secure uniformity of decision" with

other California appellate decisions regarding these issues, or in the

alternative under 8.500(b)(4) for the purpose of returning the case to the

Court of Appeal with instructions.

ISSUES PRESENTED FOR REVIEW

I. ~ether this Court should grant review of the Court of Appeal's

published d,ecision, which decides an issue currently pending in Brinker and

four subsequent grant-and-hold cases, in its principal holding that

employers need only "authorize and permit" meal periods but not "ensure'"

that those meal period breaks are actually taken.

2. Whether the Court of Appeal applied the wrong standard and

misallocated the burden of proof in allowing defendant to defeat class

certification by contesting the accuracy of its own time records' and in

requiring each employee to prove the accuracy of those time records with

respect to each missed break.

3. Whether class certification may be denied in an employment case

on conflict-of-interest grounds, simply because a small number of class

members allegedly occasionally drifted in and out of supervisory roles and

5

•

•

•

•

•

•

•

•

•

•

•

might possibly dispute at trial the testimony of fellow class members whom

they allegedly supervised.

PROCEEDINGS BELOW

In July 2006, plaintiff Rogelio Hernandez filed this class action

against his employer, Chipotle Mexican Grill, Inc., alleging that Chipotle

. deprived him and other similarly situatednon-managerial "crew members"

of statutorily mandated meal periods and rest breaks, without providing the

legally required hour of premium pay for each missed break. App. Vol. 2,

10. During the class period, Chipotle's crew members were paid an average

of only $8.37 per hour. App. Vol. 4, 866.

After preliminary discovery, the parties filed cross-motions for and

against class certification. App. Vol. 1, 181; App. Vol. 3, 793. Chipotle's

motion to deny class certification included identiCally-worded declarations

from 56 crew members and 17 managers, who stated that no meal periods

or rest breaks were ever missed. App. Vol. 2, 332 - Vol. 3, 747. Plaintiff

countered with individualized declarations from 19 crew members who

explained that they and their co-workers were prohibited from t&king .breaks

unless specifically sent on break by their manager, who often failed to give

them breaks or called them back early, especially when the restaurants were

busy. App. Vol. 4, 820; Vol. 7, 1428,1636. Plaintiff also relied upon

6

•

•

•

•

•

•

•

•

•

•

•

Chipotle's employee handbook and written workplace policies, which

prohibited workers from self-initiating breaks, from voluntarily forgoing

any breaks, or from returning early from any break unless directed to return

by a manager. App. Vol. 1,244; App. Vol. 4, 839, 852; see Ex. A at 3

("Employees are not permitted to self-initiate breaks and are prohibited

from skipping breaks.").1'

Shortly bef9re the class certification hearing; the trial court ordered

Chipotle to produce all class member time records covering the full class

period dating back to July 2003. RT 2/9/09, A-23-24.· Those records

showed that of the 2,074,451 shifts during the class period, 553,868 had

missed, delayed, or shortened meal periods and 270,245 had missed,

delayed, or shortened rest breaks. Ex. A at 5; App. Vol. 9, 2145-48.1' If

those records are accurate - as Chipotle's own policies and California law

J/ Chipotle workers are fully paid for all break time, including meal breaks,and are entitled to free food and drink during breaks. Ex. A at 3; App. Vol.1,243-44. Not surprisingly, Chipotle did not present any evidence that anycrew member ever violated a supervisor's break order by working through adesignated break. See PI. Petition for Rehearing in Ct. of App. at 18-19.

1/ Under California law, riot only must an employer provide meal periodsand rest breaks after prescribed work intervals~ but those breaks must beprovided within a designated time frame and must last for the designatedtime period. See Ex. A at 9-10 & nn. 4-5, quoting IWC Wage Order 5-2001§11 (meal periods), §12 (rest breaks). An employer that fails to provide afull, timely meal or rest break must pay the worker an additional hour'swages. Id.; see Labor Code §226.7(b); Murphy v. Kenneth ColeProductions, Inc. (2007) 40 Cal.4th 1094, 1104.

7

•

•

•

•

•

•

•

•

•

•

•

require them to be, see App. Vol. 1,244; Vol. 4, 839; IWC Wage Order 5­

2001 §7(A)(3) - they would establish violations of the Labor Code's meal­

and-rest break requirement no matter what standard this Court adopts in

Brinker, given Chipotle's policy of not allowing crew members to self­

initiate breaks.

The record shows, however, that Chipotle has never paid any crew

member for a missed, delayed, or shortened break during the class period.

See RT 2/9/09 A-17:3-8; App. Vol. 4, 858-59. Nor h~s Chipotle ever

investigated why its own records show so many missed, delayed, or

shortened breaks. Id.

Chipotle primarily defended against class certification by arguing

that its time records were inaccurate because they did not distinguish

between actual missed breaks, and breaks that were taken but not recorded.

App. Vol. 5, 1239-62. Plaintiff responded that for purposes of class

certification, it was enough to show that the time records, in conjunction

with representative employee testimony and Chipotle's own workplace

policies and legal obligations, constituted classwide proof that would be .

sufficient to establish a prima facie case of liability. App. Vol. 7, 1607-26.

Plaintiff also argued that it should be Chipotle's burden to establish that

crew members actually took their breaks where Chipotle's own records

8

•

•

•

•

•

•

•

•

•

•

••

show that such breaks were missed, delayed, or shortened. Id.

The Superior Court denied plaintiffs motion for class certification

and granted Chipotle's motion to deny certification. Ex. A at 6-7; Ex. Cat

*10. The court found that plaintiff had satisfied the requirements of

numerosity, ascertainability, typicality, and adequacy; but after predicting

that this Court in Brinker would adopt an "authorize and permit" rather than

"ensure" standard, the trial court concluded that plaintiff could not establish

predominance or superiority under such a standard. Ex. C at *8-9. As a

separate ground for decision, the Superior Court concluded that some class

members may have filled in as temporary supervisors, and - based on the

court's belief that individualized testimony would be required to determine

liability - that these temporary supervisors might disagree at trial about

which particular breaks were taken, thus giving rise to "antagonism ... of

such a substantial degree that purpose of class certification would- be

defeated. Richmond v. Dart Industries (1981) 29 Ca1.3d 462, 472." Id. at

2367.

The Court of Appeal (2nd App. Dist., Div. 8) affirmed, initially in an

unpublished opinion. See Ex. B (Grimes, J.,joined by Flier, acting P.J. and

O'Connell, J., sitting by designation). Plaintiff then filed a timely petition

for rehearing to address factual misstatements in the Court of Appeal's

9

•

•

•

•

•

•

•

•

•

e

e·

opinion, while Chipotle and several statewide employer organizations

requested publication.

On October 28, 20 I0, the Court of Appeal certified its opinion for

publication and denied plaintiffs petition for rehearing (after modifying the

opinion). The Court of Appeal's decision acknowledged that under

Chipotle's tap-on-the-shoulder break policy, no crew member could take a

meal or rest break until a supervisor said to take the break. Ex. A at 2.

Nonetheless, it concluded that plaintiff could not adjudicate Chipotle's

liability for missed breaks on a c1asswide basis, but must prove for each

alleged violation that Chipotle's time records were accurate and that the

employee did not actually take the break. Ex. A at 5 & n.l.

The Court of Appeal began by affirming the trial court's threshold

legal ruling that California employers are only required to "permit" rather

than "ensure" meal periods for their workers. Ex. A at 9-13. The Court

rejected plaintiffs arguments that the trial court not only got this wrong on

the merits, but should not have decided it in the first place (because, under

Linder v. Thrifty Oil Co. (2000) 23 Ca1.4th 429, 439-41, and Sav-On Drug

Stores, Inc. v. Superior Court (2004) 34 Ca1.4th 319,338, courts must

assess the predominance of common issues under plaintiff's legal theories).

See Ex. A at 13-14.

10

•

•

•

•

•

•

•

•

•

•

.'

The Court of Appeal then held that the trial court did not abuse its

discretion in denying class certification, because individual issues would

necessarily predominate under an "authorize and permit" standard. Id. at

15-18: The Court held that plaintiff could not establish liability through

common evidence, but must instead prove, on an individual basis, whether

each missed break in the records was actually missed, and if so,,why it was

missed. Id. at 16. In so holding, the Court rejected plaintiffs argument that

the burden must be placed on Chipotle to prove the inaccuracy of its own

legally mandated time records. Ex. A at 16 n.7.

Finally, the Court of Appeal held that, because plaintiff could not, .

establish Chipotle's liability without conducting thousands of break-by-

break "mini-trials," the potential testimoniai conflict between temporary

supervisors and other clas~ members would "defeat the purpose of class

certification" (id. at 18) - a conclusion that ignored the absence of any

"actual" conflict, the availability of subclassing (if any actual conflict ever

arose), this Court's contrary holding in Richmond, and many contrary

appellate rulings in similar cases.

11

•

•

•

I.

REASONS WHY REVIEW SHOULD BE GRANTED

GRANT-AND-HOLD REVIEW IS NECESSARY TO ENSUREUNIFORMITY OF DECISION WITH RESPECT TO THEPROPER LEGAL STANDARD PENDING THIS COURT'S

. DECISION IN BRINKER.

The Court should grant review and, at a minimum, defer further

•

•

•

•

•

•

•

•

briefing until after Brinker is decided, because the threshold ground for the

lower courts' denial of class certification was that "employers must provide

employees with [meal] breaks, but need not ensure employees take breaks."

Ex. A at 2,9-13; Ex. Cat 2363-64.11

Whether this is the correct standard under California law is the

precise issue ,pending before this Court in Brinker and the post-Brinker

grant-and-hold cases. Meanwhile, the current law in California - with

which the Court of Appeal's decision is in direct conflict - is that

"employers have 'an affirmative obligation to ensure that workers are

actually relieved of all duty'" during meal periods. Cicairos v. Summit

Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-63, review & depub. denied

(2006) No. S139377. Although the lower court in Brinker held otherwise,

11 The Court rested its holding on a discussion of the regulatory history, aswell as the analysis adopted by several recent federal court decisions. I..d. at13, 16, quoting White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d1080, 1088-89 and Brown v. Federal Express Corp. (C.D. Cal. 2008) 249F.R.D. 580, 585.

12

•

•

•

•

•

•

•

•

•

•

that decision was vacated by this Court's grant of review, just as every other

appellate decision that later adopted that approach has now been vacated by

a grant-and-hold order. See supra at 1 n.l.

The only appellate cases addressing these issues in which review has

not been granted are Cicairos and Jaimez v. Daihos USA (2010) 181

Cal.AppAth 1286, which are directly contradicted by the Court of Appeal's

analysis in this case. Several federal district courts have adopted a "pennit"

standard, though, which has caused additional confusion concerning the

proper standard.Q' To prevent the spread of further conflicts, and for the

additional reasons set forth below, this Court should at a minimum grant

review of the Court of Appeal's published decision and hold this case

pending its decision in Brinker.

II. PLENARY REVIEW SHOULD BE GRANTED TO RESOLVEIMPORTANT LEGAL ISSUES REGARDING CLASSCERTIFICATION AND BURDENS OF PROOF THAT WILLPERSIST AFTER BRINKER.

Once this Court decides Brinker, the next question that will arise in

many meal-and-rest-break cases - regardless of which legal standard is

§! See, e.g., Lopez v. G.A. T Airline Ground Support (S.D. Cal. Sept. 13,2010) 2010 WL3633177, *10; Kenny v. Supercuts (N.D. Cal. 2008) 252F.R.D. 641, 645-46; White, 497 F.Supp.2d at 1088-89; Kimoto v.McDonalds Corp. (C.D. Cal. Aug. 19, 2008) 2008 WL 4690536, *4-6;Salazar v. Avis Budget Group (S.D. Cal. 2008) 251 F.R.D. 529, 532-34;Brown, 249 F.R.D. at 585.

13

•

•

..

•

•

•

•

•

•

•

•

adopted - will ask how can affected workers prove the number of meal or

rest breaks that their employer unlawfully failed to provide them? Plaintiff

in this case sought to rely on representative testimony from Chipotle

employees, common evidence of Chipotle policies, and Chipotle's own time

records to prove that Chipotle frequently denied breaks to its crew members

and never paid any crew member the statutorily-required compensation for

any missed breaks. Chipotle primarily defended by challenging the

accuracy of its own time records, contending that its employees took breaks

but sometimes - contrary to Chipotle policy - forgot to record them. The

Court of Appeal agreed with Chipotle that the trial court must resolve for

each missing break whether the affected employee actually took the breaks

that the time· records report as missed. Ex. A. at 16 ("A trier of fact will

have to ascertain if Chipotle employees actually missed breaks, or simply

forgot to record them ....").

As a result, this case directly raises a set of important issues that

have repeatedly arisen in wage-and-hour and other employment cases, and

will continue to arise even after this Court decides Brinker: how does an

employer's challenge to the accuracy of its own time records affect the

burden of proof, and to what extent may such a challenge preclude class

14

•

•

•

•

•

•

•

•

•

•

•

certification by creating individualized issues?11

As several employer groups pointed out in successfully requesting

publication, there are "hundreds, if not thousands," of meal-and-rest-break

cases pending in California courts, and "numerous cases pending in the trial

courts involve factual situations very close to" this case.~ Many of those

cases, like this, are putative class actions, and many will likewise involve

disputes over the accuracy of the defendant employer's time records - a

trend that will only increase if the Court of Appeal's decision is allowed to

stand. All of these cases will raise the questions of which party should bear

the burden of proof with respect to the accuracy of the records, what proof

is sufficient, and, in putative class action cases, whether employees can

prove through common, classwide evidence that they actually missed the

breaks that their employer's time records show they missed.

If this Court decides in Brinker that the standard for meal break

violations is whether the employer has "ensured" such breaks, the question

11 See, e.g., Kimoto, 2008 WL 4690536, *6 (denying certification ofrestaurant worker class after employer contested accuracy of its breakrecords); Kenny, 252 F.R.D. at 646 (denying certification of meal breakclaims and rejecting plaintiffs' attempt to rely on time records).

,&1 See Request for Publication of the Employers Group, The CaliforniaChamber of Commerce, the California Hospital Association, and theCalifornia Manufacturers & Technology Association (Oct. 19,2010) at 1;Request for Publication of the California Employment Law Council (Oct.12, 20 lOy at 2.

15

•

•

•

•

•

•

•

•

•

•

•

why an employee missed a meal break will not matter (because if an

employee misses a break the employer will be liable for failing to ensure

that the break was taken). Even under a "permit" standard, however, in

cases where the employer has a "tap-on-the-shoulder" break policy, as here,

there will be no need to inquire into "why" a worker failed to take a

particular break. In such cases, the company's managers exercise complete

control over when breaks may be taken, and employees are prohibited from .

disregarding' their manager's order by skipping a designated break.

Thus, for the large number of cases involving employers with

tap-on-the-shoulder policies (or other classwide policies that eliminate any

question about "why" missed breaks were missed), the only question

relevant to liability will be "which" breaks were actually missed.2! That is

2! Other categories of employment cases in which there will be no need toindividually prove why employee missed breaks include misclassificationcases (where an employer may have misclassified all of its employees asexempt and ineligible for breaks and therefore did not provide such breaks),see, e.g, Jaimez, 181 Cal.App.4th at 1303-04, and cases in which theemployer structured its workers' job duties so to prevent them as a practicalmatter from taking their breaks. See, e.g, Cicairos, 133 Cal.App.4th at962; Wang v. Chinese Daily News (9th Cir. 2010) 623 F.3d 743, 758; seealso Ex. A at 12-14 (purporting to distinguish Cicairos as a case in which"the employer's business practices effectively deprived employees of theability to take meal breaks," and Jaimez as a case in which "the employeesmissed meal breaks because of the employer's practice of designatingdelivery schedules and routes that made it impossible for employees to bothtake their breaks and complete their deliveries on time").

16

•

•

•

•

•

•

•

•

•

•

•

why, however Brinker may be decided, plenary review should be granted in

this case to decide whether an employer whose time records document

California Labor Code violations can avoid liability by shifting to plaintiffs

the burden to prove the accuracy of those time records - and can defeat

class certification merely by asserting that their time records do not

accurately reflect when their employees were actually working.

A. This Court Should Grant Review Because the Court ofAppeal's Holding Conflicts With a Long-StandingPrecedent Shifting the Burden of Proof to an EmployerThat Fails to Keep Accurate Records of Employee Time.

California law, set forth in IWC Wage Order 5-2001 §7(A)(3),

expressly requires employers to maintain accurate time records that

document every meal period taken and missed:

(A) Every employer shall keep accurate information withrespect to each employee including the following: ...

(3) Time records showing when the employee begins andends each work period. Meal periods, split shift intervals andtotal daily hours worked shall also be recorded. Meal periodsduring which operations cease and authorized rest periodsneed not be recorded.

(Emphasis added); see Franco v. Athens Disposal Co. (2009) 171

Cal.App.4th 1277, 1299 ("By law, an employer must maintain time records

showing an employee's (1) 'total daily hours worked' and (2) meal periods,

17

•

•

•

•

•

•

•

•

•

•

•

unless 'operations cease' during meals."). 101

Although §7(A)(3)'s recordkeeping requirement applies only to meal

periods and not to rest breaks, Chipotle, like many California employers,

requires accurate contemporaneous record of all breaks. Thus, Chipotle's

written handbook policy states:

All crew must record time worked and rest periods usingthe POS terminal. ...

We provide you with breaks as appropriate per state law.Your manager will review the break policy with you. Thoughyou need to clock in or out for these break periods, you do getpaid for them. Clocking in and out for anyone other thanyourself is prohibited.

App. Vol. 1,244 (emphasis added). Moreover, Chipotle requires that all

employee time records be accurate. See id. at 253 (requiring employees "to

adhere strictly" to Chipotle's "written policies and procedures" (including

its policy requiring that "[a]ll records, including employment [and] payroll

data ... must ... be prepared with accuracy and care"), and stating that

"[d]ishonesty or carelessness in recording or reporting information [is]

101 IWC Wage Order 5-2001 is one of 13 largely identical wages ordersregulating the wages, hours, and working conditions of specific industries,three relating to specific occupations, and one addressing "miscellaneousemployees." See 8 Cal. Code Regs. tit. 8, §§11010-170. The.record­keeping requirements in those Wage Orders were added to facilitateenforcement of the workers' wage-and-hour rights, including their right tostatutory meal periods. See Statement of Basis, IWC Wage Order (1980)..

18

•

•

•

•

•

•

•

•

•

•

•

stI:ictly prohibited ...."); id. at Vol. 4, 839 (stating procedure requiring

managers to "edit time punches" when the "crew person forgets to punch in

or out for their breaks.").ll!

The Court of Appeal's conclusion that each plaintiff must

individually prove the accuracy of eactI and every missed break record

abruptly departs from a long line of California appellate cases which hold

that where an employer has failed to keep accurate records of employee

time, the employees are entitled to prove their hours worked (or in this case,

their breaks missed) through reasonable inference - in effect, easing their

burden of proof. See, e.g., Hernandez v. Mendoza (1988) 199 Cal.App.3d

721, 726-27 ("where the employer has failed to keep records required by

statute, the consequences for such failure should fall on the employer, not

the employee.... The employee has carried out his burden ... ifhe

produces sufficient evidence to show the amount and extent of work as a

matter of fact and reasonable inference."); Ghazaryan v. Diva Limousine,

ll! According to Chipotle's posted workplace policies:

A Manager Can Only Edit Time Punches for the FollowingReasons: The crew person forgets to punch in or out for theirbreaks. You can edit this time punch. If you "think" theperson took the break ... verify and get their signature."

App. Vol. 1,244; also Vol. 5, 1271 ~18 (Chipotle holds all employeesaccountable for compliance with company policy).

19

•

•

•

•

•

•

•

•

•

•

•

Ltd. (2008) 169 Cal.AppAth 1524, 1536 n.l1 ("To the extent such data

[needed to prove on-call hours] are not readily accessible, that absence is

attributable to the inadequacy of [the employer's] own records and cannot

be relied upon to resist the attempt of its employees to [prove their case]");

Amaral v. Cintas Corp. No.2 (2008) 163 Cal.AppAth 1157, 1187-91

(placing burden of proof on employer to prove which employees did not

work on contract, where employer could have maintained accurate records

of service contract work); Aguiar, 144 Cal.App.4th at 134-35 (employer

cannot defeat classwide liability by asserting inaccuracy or incompleteness

of its own records); Cicairos, 133 Cal.AppAth at 961 (shifting burden to

employer in light of failure to keep records to prove that it provided meal

breaks). The defendant employer then bears the burden of overcoming

plaintiffs' proof through affirmative evidence (here, that those missed

breaks were actually taken), but it has no right to insist on individualized

proof. E.g., Mendoza, 199 Cal.App.3d at 726-27. As the U.S. Supreme

Court explained in Anderson v. Mt. Clements Pottery Co.:

[W]here the employer's records are inaccurate or inadequateand the employee cannot offer convincing substitutes a ...difficult problem arises. The solution, however, is not topenalize the employee by denying him any recovery on theground that he is unable to prove the precise extent ofuncompensated work. Such a result would place a premiumon an employer's failure to keep proper records in conformitywith his statutory duty....

20

•

•

•

•

•

•

•

•

•

•

•

(1946) 328 U.S. 680,687.

The Court of Appeal broke with this established line of authority,

creating a conflict that needs to be resolved by this Court. Instead of

pennitting plaintiff and the putative class to prove the number of missed

breaks "as a matter of fact and reasonable inference," Mendoza, 199

Cal.App.3d at 727, the Court instead required break-by-break proof to

establish the precise circumstances underlying each instance in which

Chipotle's time records showed a missed, delayed, or shortened break. Ex.

A at 16. Supreme Court review is needed to clarify that the Court of

Appeal misallocated the burden of proof under these circumstances, which

commonly occur in employment litigation.

The Court of Appeal's misplaced burden creates a perverse incentive

for employers to avoid keeping accurate records, even when legally

required, to preserve the argument that their own records are unreliable to

defeat class certification on the basis of the supposed need for

individualized proof. It was precisely to avoid this perverse incentive that

other courts have concluded that the employer should bear the burden when

there is a dispute over the accuracy of workplace records. To allow the

Court of Appeal's holding to stand would not only create tunnoil in

employment litigation, but would encourage employers to maintain

21

•

•

•

•

•

•

•

•

•

•

•

inaccurate records, thus effectively exculpating themselves from liability for

their wage and hour violations. Cf Gentry v. Superior Court (2007) 42

Cal.4th 443, 457 (addressing exculpatory effects of precluding class actions

in wage and hour litigation); Franco, 171 Cal.App.64th at 1297-99

(applying Gentry to meal-and-rest break claims).

The Court of Appeal, in a cryptic footnote, attempted to distinguish

these cases by stating that Chipotle did not deliberately fail to keep time

records or deliberately falsify its records. Ex. A at 16 n.7. Review by this

Court is needed to repudiate that purported distinction. The underlying

justification for shifting the burden is not limited to cases where the

employers falsify or keep no records; for as these cases have recognized, the

burden shifts even when the employers' records are "inaccurate or

inadequate," Mt. Clemens, 328 U.S. at 687; Mendoza, 199 Cal.App.3d at

727, and where the employers' records are not legally mandated. See, e.g.,

Ghazaryan, 169 Cal.App.4th at 1536 n.ll; Amaral, 163 Cal.AppAtli at

1187-91; Cicairos, 133 Cal.AppAth at 961-63.ll!

111 The Court of Appeal's statement that Chipotle did not purposefullykeep inaccurate meal break records is also contradicted by that Court's ownfindings. Chipotle's initial declarations stated that its managers correctedemployee time records. In response to plaintiffs reliance on those recordsas accurate, Chipotle submitted additional declarations shortly before theclass certification hearing stating that in 2006 Chipotle began instructing

(continued...)

22

.'

•

•

•

In this case, Chipotle easily could have ensured the accuracy of all

meal-and-rest-break records, simply by enforcing its procedures requiring

accuracy and managerial review and correction. This Court should grant

review to make clear that an employer cannot avoid liability by the

expedient of allowing sloppy record-keeping and then contending that its

workers must affirmatively prove the accuracy of each time record.

•

•

B. The Court Should Grant Review Because the Court ofAppeal's Conclusion that Resolving the Accuracy ofChipotle's Records of Missed Breaks Would Require"Thousands of Mini Trials" Conflicts with EstablishedAuthority that Allows Proof by Representative Testimony.

•

•

•

•

•

•

Review is also warranted to bring conformity to the appellate

decisions concerning the use of representative testimony and statistical

sampling where an employer's Labor Code violations potentially affect

large numbers of employees and/or where there a large numbers of

III (. ..continued)managers not to correct inaccurate break records. See Ex. A at 4, 16.Chipotle's instructions to its managers to ignore errors in legally mandatedrecords certainly establishes at least a "purposeful[] fail [ure]" to keepaccurate records, even if it does not rise to the level of "deliberatefalsification." (In any event, the record also includes considerable evidencethat Chipotle's managers continued to correct inaccurate meal and restbreak records after 2006, as required by Chipotle's written and postedworkplace policies. See Ex. A at 4 (noting that despite the asserted changein policy, "some managers edited employees' time records to record mealand rest breaks when an employee forgot to clock in or out."); Petition forRehearing at 20-24; App. Vol. 2, 350 ~16; Vol. 7, 1501, 1520, 1548, 1556,1568).

23

•

••

•

•

•

•

•

•

•

•

•

violations (even affecting only one employee);

The putative class in this case includes approximately 12,000

individuals, with claims dating back to July 2003. According to Chipotle's

time records, more than two million shifts were worked in California by

putative class members during that period, and Chipotle's time records'

document hundreds of thousands of shifts with missed, delayed, or

shortened breaks. App. Vol. 9, 2145-48.

As a practical matter, given the sheer number of missed breaks

reflected in Chipotle's records, it is doubtful that any single plaintiff, let·

alone a group of co-workers or the entire proposed class of crew members,

could affirmatively prove the circumstances surrounding each missed break,

as the Court of Appeal seemed to require by its conclusion that classwide

adjudication would require "thousands of mini-trials." Ex. A at 16. Thus,

whether this case proceeds only on behalf of plaintiff Hernandez, or on

behalf of all Chipotle crew members who signed declarations attesting to

missed meal and rest breaks, or as a class action involving thousands of

plaintiffs, it can only be adjudicated through representative evidence. No

matter how many or how few plaintiffs pursue claims in this case, the t.rial

court could not possibly adjudicate each contested time record separately;

and the same efficient case management techniques that would enable one,

24

•

•

•

•

•

•

•

•

•

•

•

or a handful, of plaintiffs to litigate the accuracy of their time records could

easily be applied to the entire class. So, even without the class action

overlay, the Court of Appeal erred in-not permitting plaintiff to meet his

threshold burden through reasonable inferences and estimates drawn from

Chipotle's time records and representative testimony. See Mendoza, 199

Cal.App.3d at 726-27; Mt. Clemens, 328 U.S. at 687.

There are only two possible explanations for each time record in a .

"tap on the shoulder" meal-and-rest-break case like this. Either the break

was actually missed (in which case Chipotle should be liable under its tap­

on-the-shoulder policy for failing to send the worker on break); or the

seemingly missed break was actually taken, but the affected crew member

forgot to clock out and the on-duty manager did not correct the inaccurate

time entry (in which case Chipotle should not be liable). These are the only

two possible explanations, which is why classwide adjudication based on

burden-shifting and a statistically valid sampling of the class provides a far

more just and efficient procedure for determining liability than requiring

12,000 separate lawsuits concerning the validity of 800,000 separate time

records. See Sav-On, 34 Ca1.4th at 333; Bell v. Farmers Ins. Exchange

(2004) 115 Cal.AppAth 715, 750-51 (explaining why classwide treatment

of low-wage workers' wage claims avoids "the sort of random and

25

•

•

•

•

•

•

•

•

•

•

•

fragmentary enforcement that will fail to effectively assure compliance" if

SUGh workers are forced to proceed on an individual basis ).111

As the> Court of Appeal explained in Bell, the use of statistical

sampling does not relieve plaintiffs burden to prove its case,

but rather offers a different method of proof, substitutinginference from membership in a class for an individualemployee's testimony of hours worked for inadequatecompensation. It calls for a particular form of experttestimony to carry the initial burden of proof, not a change insubstantive law."

Bell, 115 Cal.App.4th at 750; accord Sav-On, 34 Cal.4th at 333 (citing this

language with approval). 141 Yet under the Court of Appeal's approach,

111 While the Court of Appeal asserted.that Chipotle's policies gave crewmembers no economic "incentive to clock in and out," Ex. A at 16, itoverlooked that Chipotle had a mandatory clock-in/clock-out policy,enforceable through disciplinary action, which provided a strong incentivefor crew members (and their supervisors) to ensure that all break time wasproperly recorded. See supra at 18 & n.ll.

111 See also Dilts v. Penske Logistics LLC (S.D. Cal. 2010) 267 F.R.D. 625,638 (certifying California meal and rest break class; rejecting argument thatstatistical sampling should not be used to prove liability in California mealand rest break class action because the "only proper way to litigate theseclaims is trial testimony by and cross-examination of each claimant," andconcluding that "[a]s to liability, the use of statistical sampling, at leastwhen paired with persuasive direct evidence, is an acceptable method ofproof in a class action"); Adorna v. Univ. ofPhoenix (E.D. Cal. 2010) 2010WL 3431894; *5-8(granting class certification in overtime case andapproving the use of representative testimony and statistical sampling oftime records to prove liability and damages, despite arguments thatemployees kept inaccurate time records); Cornn v. United Parcel Service,Inc. (N.D. Cal. 2005) 2005 WL 588431, *11-12 (certifying meal break class

(continued...)

26

•

•

•

•

•

•

•

•

•

•

•

every worker alleging a meal or rest break violation would be required to

testify - and to recall - the specific circumstances of each missed break

dating back to 2003 to confirm that each missing break is one the worker

actually failed to take.

The Court of Appeal's analysis in this case is irreconcilable with the

cases cited above. For this reason as well, plenary review should be granted

. to address the recurring issue of when, and under what circumstances,

plaintiffs in employment litigation may rely on statistical sampling and

representative evidence to establish classwide liability. While the precise

methodology for such sampling cannot be determined until discovery is

.further along, it was surely error for the Court of Appeal to reject the

concept of proving classwide liability through such evidence coupled with

contemporaneous time records..lit

11/ ( ...continued)where employer argued that workers failed properly to record their meal

.breaks and finding that parties' dispute over accuracy of records was itself acommon issue that would ultimately need to be decided by the jury); In reChevron US.A. Inc. (1997) 109 F.3d 1016, 1019-21 (approving'bellweather' liability trials); Newberg & Conte, 3 Newberg on ClassActions (4th ed. 2002) §10.5 at 483 ("Challenges that such aggregate proofaffects substantive law and otherwise violates the defendant's due processor jury trial rights to.contest each member's claim individually, will notwithstand analysis.").

.lit If plenary review is granted and this case is remanded for a class to becertified, the trial court might decide (depending on the evidence) to create

(continued...)

27

•

•C. The Court Should Grant Review Because the Court of

Appeal's Decision to Allow Individualized Defenses toDefeat Class Certification Conflicts with StandardsEstablished by this Court

•

•

•

•

•

•

•

•

•

The important burden-shifting principles discussed above have been

applied in many prior employment cases, in which courts have held that an

employer cannot defeat liability by asserting the inaccuracy of its own

records. In the class action context, these principles are also supported by

another well-established concept, with which the Court of Appeal's

published opinion in this case also conflicts - that once the plaintiff class

demonstrates that it can establish a prima facie case of liability through

common classwide evidence, defendant may not defeat class certification by

arguing that it has individualized defenses to those class action claims. See,

e.g., Sav-On, 34 Ca1.4th at 329-30; Vasquez v. Superior Court (1971) 4

Ca1.3d 800,811-15& n.9.

In Sav-On and Vasquez, this Court recognized that to obtain class

certification, a plaintiff n(:ed only show an ability to establish classwide

liability under plaintiffs theory of the case, based on common, classwide

.W ( ...continued)subclasses reflecting the different types of violations reflected in Chipotle'stime records. For example, the trial court might consider using differentsamples to test the accuracy of records showing missed breaks versusdelayed breaks versus breaks that were shorter than legally required.

28

•

•

•

•

•

•

•

•

•

•

•

evidence - and that defendant cannot automatically defeat class certification

by arguing that it has individualized defenses to liability that would

predominate. See, e.g., Sav-On, 34 Cal.4th at 327,334,339. Here, plaintiff

can establish Chipotle's classwide liability through evidence of common

workplace practices and policies (e.g, Chipotle's "tap-on-the-shoulder"

policy, its requirement of accurate record-keeping and time-keeping, and its

failure to have ever paid a single crew member for a missed break) coupled

with classwide electronic time records. Given the lower burden of proof

applicable to a case like this, Chipotle should not have been able to defeat

class certification by asserting a purported right to conduct a break-by-break

inquiry into the accuracy of each time record: it has no right to

individualized, violation-by-violation proofs in presenting its defense.

In sum, plenary review is needed because the Court of Appeal's

published decision creates irreconcilable conflicts with at least three lines of

authority. The case raises fundamentally important issues to the future of

wage and hour litigation, including whether the burden of proving what

hours were actually worked should fall on an employer that contends that it

has failed to keep accurate records; whether that burden can be discharged

through representative testimony, perhaps based on a randomly sampled

cross-section of the class (rather than only on a break-by-break, time record-

29

•

•

•

•

•

•

•

•

•

•

. by-time record basis); and whether a defendant should be able to rely on

individualized defenses to defeat class certification by contending that its

time records are inaccurate.

III. REVIEW IS NECESSARY BECAUSE tHE COURT OFAPPEAL ERRED IN HOLDING THAT THE SPECULATIVEPOSSIBILITY OF A TESTIMONIAL CONFLICT CREATEDSUFFICIENT INTRA-CLASS "ANTAGONISM" TOPRECLUDE CLASS CERTIFICATION.

Plenary review should also be ordered to resolve an important

appellate conflict and to give guidance to the lower courts concerning

when, if ever, the future possibility of some class members testifying

inconsistently with others creates intra-class "antagonism of so substantial a

degree" as to preclude class certification - a circumstance that has never

been found to exist by any Court ofAppeal, until this case.

In the last section of its published decision, comprising a single

paragraph, the Court of Appeal affirmed the denial of class certification on

the alternative ground that there was apotential for a testimonial conflict

among class members at trial. Ex. Aat 18. Based on the conclusion that

individual testimony would be required from every class member to prove

liability, the Court concluded that the potential for testimonial conflict

between class members necessarily created "antagonism of such a

substantial degree that the purpose for class certification would be

. 30

•

Ii

•

•

•

•

•

•

defeated" within the meaning of Richmond, 29 Ca1.3d at 476-77. Id. This

potential conflict rested on the Court's speculation that to the extent some

class members "move[d] in and out of supervisory roles" during the class

period, they might be "accuse[d]" by other class members of being

responsible for Chipotle's failure toprovide their required breaks. Id.

In addition to resting on the false premise that individual class

member testimony is necessary (which is wrong for the reasons given

above), this portion of the Court of Appeal's decision also directly conflicts

with Richmond and many Court ofAppeal decisions that refused to deny

class certification based on speculatiVe testimonial conflicts, such as Nat'l.

Solar Equipment Owners' Assoc., Inc: v. Grumman Corp. (1992) 235

Cal.App.3d 1273; Daniels v. Centennial Capital, Inc. (1993) 16

Cal.AppAth 467; and Aguiar, 144 Gal.AppAth at 138. If permitted to

stand, this alternative holding will make it nearly impossible for workers to

obtain class certification in any future employment case in which some

class members - even a very small number, as here -weretemporarily

delegated any supervisory responsibilities (or, taking the Court of Appeal's

analysis to its logical conclusion, in'any case in which different class

members might recall key events differently).

There is little evidence in the record to support the factual predicate

31

•

•

•

•

•

•

•

•

for the lower courts' substantial-antagonism analysis - that Chipotle

sometimes asked crew members to function as temporary stand-in

supervisors. But even assuming for.purposes of this Petition that Chipotle's

managers delegated to some crew members the task of telling others when

to take a break, the speculative possibility that one class member might

dispute another's recollection of events at trial has never been found

sufficient to create "antagonism" sufficient to defeat certification.16/

No other California appellate court has ever found that the mere

possibility of a potential testimonial conflict among putative class members

creates such "substantial" intra-class "antagonism" as to require denial of

class certification. The Court of Appeal's opinion thus stands in sharp

contrast to other courts that have determined that such potential conflicts of

interest do not bar class certification unless they ripen into actual conflicts

l§' Factually, Chipotle did not present any evidence on this conflict issueuntil its final reply brief, filed just five days before the class certificationhearing, when five of the 17 managers who had previously submitteddeclarations for Chipotle filed supplemental declarations stating that theyhad on occasion delegated to crew me'mbers "on some shifts" the task oftelling others when to take breaks. See App. Vol. 9, 2083:4-8, 2096:4-7,2103:4-7,2106:4-7,2111 :4-7; Petition for Rehearing at 9-11. Notably,none of the 75 Chipotle crew members who had submitted declarations inthis case ever claimed to have moved in and out of a supervisory role, or tohave known about this supposed practice, or to have been denied a break byanother crew member serving as a "lead. Nor did Chipotle ever present anyevidence that any of the missed breaks reflected in its time records occurredwhen a "lead employee" was supposedly in charge.

32

•

•

•

•

•

•

•

•

•

that cannot be cured through subclassing or modifying the class definition.

In Richmond, for example, defendant argued that there was an

inherent conflict because the class complaint included a claim for recission,

while some class members wanted their relationship with defendant to

continue. 29 Cal.3d at 476. This Court held that any disagreement among

class members as to the appropriate relief was insufficient to preclude class

certification, and the Court was "not prepared to deny class action status at

this time upon the prospect of a conflict which mayor may not arise in the

future. . .. [because to] rule otherWise would invite the kind of speculation

that went on in the trial court below." Id.J1.I

Here, there is no record evidence of any actual conflict of interest or

J1.I See also Aguiar, 144 Cal.App.4that 144, 147 (even if class members'interests turned out at trial to be antagonistic, the solution would be tocreate subclasses); Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325,1334-35 (potential intra-class conflicts may be resolved throughsubclassing); Nat'l Solar Owners' Assoc., 235 Cal.App.3d at 1285-86(denying certification would be "too.drastic a remedy" since no actualconflict had yet been established; later conflicts may be addressed throughsubclassing or other procedures); id. at 1285, quoting Marshall v. HolidayMagic (9th Cir. 1977) 550 F.2d 1173 (that "some of the plaintiffs may haveclaims against each other does not detract from their identical legal andfactual claim against ... defendants" and does not constitute "substantialconflict going to the subject matter of the lawsuit"); Blackwell v. SkywestAirlines, Inc. (S.D. Cal. 2007) 245 F.R.D. 453, 464-65 (rejectingdefendant's argument that plaintiff could not represent supervisors "becauseshe accuses them of denying her requests for meal periods" and the"supervisors will testify against her with res'pect to her claim for missedmeal periods").

33

•

•

•

•

•

•

•

•

•

actual antagonism among putative class members. Chipotle did not even

identify which class members served as "leads" or when, let alone which

were on duty when Chiptotle's time records show missed breaks.

Moreover, from a liability perspective, it makes no difference which person

with supervisorial responsibility failed to send a crew member on break

because, under California law, responsibility for failing to provide legally

mandated breaks rests with the employer.w

For these reasons, the Court of Appeal's conclusion that a potential,

testimonial conflict among class members "demonstrated antagonism of so

substantial a degree as to defeat the purpose of class certification" conflicts

with every other decision to address this issue. If allowed to stand, that

rationale could be used to defeat class certification in almost any

employment class action on the basis that a small, unidentified number of

prospective class members, at some unidentified time, might have had some

involvement in the challenged employer practices. Review should be

lit As this Court recently held in Martinez v. Combs (2010) 49 Ca1.4th 35,the obligations of an "employer" under California labor law do not extendto rank-and-file workers who are asked on a fill-in basis to implementcompany policies that, in practice and as a matter of company policy theirmanagers and the company itself remain ultimately responsible forenforcing. 49 Ca1.4th at 68, 75 (citing Reynolds v. Bement (2005) 36 Ca1.4th1075,1086 as "properly hold[ing] that the IWC's definition of 'employer'does not impose liability on individual corporate agents acting within th,escope of their agency").

34

•

•

•

•

••

•

•

granted to resolve this appellate conflict as well, so the Court can explain

why such potential testimonial conflicts are not sufficient to require the

denial of class certification.

CONCLUSION

The Court should grant review of this case and, at aminimum, defer

further briefing pending disposition of Brinker pursuant to Rule of Court

8S12(d)(2). In the alternative, the Court should order plenary review

pursuant to Rule 8.512 (or at a minimum remand with instructions pursuant

to Rule 8.528(d)), because the Court of Appeal's newly published opinion

raises important and unsettled issues regarding class certification and trial

of meal and rest break claims that will persist regardless of the outcome in

Brinker, and ~ecause-jtconflicts with other appellate decisions with respect

to the use of time records in employment litigation and the types of intra-

class conflicts that may affect the class certification decision.

•

•

•

•

Dated: December 7, 2010

. I

By:

35

Respectfully submitted,

ALTSHULER BERZON LLPRASTEG & TERN

•

•

•

•

•

•

•

•

CERTIFICATE OF WORD COUNT

I hereby certify pursuant to Rule 8.504(d)(l) of the California Rules

of Court that this Petition for Review is proportionally spaced, has a

typeface of 13 points or more, and contains 8,222 words, excluding the

cover, tables, signature block, and this certificate, which is less than the

number of words pem'iitted by the Rules of Court. Counsel relies on the

word count of the word processing program used to pre are this brief.

Dated: December 7, 2010

lch el RubinAttorney for Plaintiff-PetitionerRogelio Hernandez

36

•

•

••

PROOF OF SERVICE

CASE NAME: Hernandez v. Chipotle Mexican Grill, Inc.COURT OF APPEAL CASE NO.: B216004"

I am employed in the City and County of San Francisco, California.I am over the age of eighteen years and not aparty to the within action; mybusiness address is 177 Post Street, Suite 300, San Francisco, California94108. On December 7,2010, I served the following document(s):

. • PETITION FOR REVIEW

on the parties by placing true copies thereof in sealed envelopes addressedas shown below for service as designated below:

•

•

•

•

•

•

A)

B)

By United Parcel Service: I am readily familiar with thepractice of Altshuler Berzon LLP for the collection ofovernight courier deliveries and I caused each such envelopeto be delivered to the United Parcel Service at San Francisco,California, with whom we have a direct billing account, to bedelivered to the office of the addressee on the next businessday.

By First Class Mail: I am readily familiar with the practice ofAltshuler Berzon LLP for the collection and processing ofcorrespondence for mailing with the United States PostalService. I caused each such envelope, with first-class postagethereon fully prepaid, to be deposited in a recognized place ofdeposit of the U.S. Mail in San Francisco, California, forcollection and mailing to the office of the addressee on thedate shown herein.

37

•

•

•

•

•

•

•

•

•

•

Type of Service Addressee Party

A Clerk of the Court Court of AppealState of California Court of AppealSecond Appellate District, Div. 8Ronald Reagan State Building300 S. Spring St., 2nd FloorLos Angeles, CA 90013

A Clerk of the Court Superior CourtSuperior Court of Los AngelesCentral DistrictStanley Mosk CourthouseIII N. Hill St., Dept. 14Los Angeles, CA 90012

B Richard 1. Simmons Counsel forSheppard, Mullin, Richter & DefendantHampton LLP333 South Hope Street, 43rd FloorLos Angeles, CA 90071

I declare under penalty of perjury under the laws of the State ofCalifornia that the foregoing is true and correct. Executed this 7th day ofDecember 2010, at San Francisco, califomi~ ........---==::

Laurel Kapros

,38

•

•

•

•

•

•

•

•

•~

-~i'n\'o\ .

m><

~

:::x:iii=i

•

~

•

•

•

•

Filed 9/30/10; pub. & mod. order 10/28/1 0 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

•

ROGELIO HERNANDEZ,

Plaintiff and Appellant,

v.

CHIPOTLE MEXICAN GRILL, INC.,

Defendant and Respondent.

B216004

(Los Angeles CountySuper. Ct. No. BC373759)

•

•

•

•

•

APPEAL from the judgment of the Superior Court of Los Angeles Colinty.

Terry A. Green, Judge. Affirmed.

Altshuler Berzon; Michael Rubin, James M. Finberg, Eve Cervantez,

Danielle E. Leonard; Rastegar & Matern, Matthew J. Matern and Douglas W. Perlman

for Plaintiff and Appellant.

"\ Sheppard, Mullin, Richter & Hampton, Richard J. Simmons and Geoffrey D.

DeBoskey for Defendant and Respondent.

•

•

•

•

•

•

•

•

•

INTRODUCTION

Plaintiff and appellant Rogelio Hernandez (Hernandez) appeals from the order

denying his motion for class certification and granting the motion to deny class

certification of defendant and respondent Chipotle Mexican Grill, Inc. (Chipotle). We

hold that the trial court did not abuse its discretion and affinn. In doing so, we

conclude that employers must provide employees with breaks, but need not ensure

employees take breaks.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual background

Chipotle is a fast food restaurant chain, currently employing about 3,000 hourly

employees in its approximately 130 California restaurants. All Chipotle employees are

nonexempt, hourly workers entitled to overtime compensation when earned, including

managers, except for the salaried position of "restaurateur." Each Chipotle restaurant

is managed by either a restaurateur or a general manager. Some employees move in

and out of supervisory roles. For example, employees may be responsible for

scheduling meal and rest breaks on some shifts and weeks, but not on others. The

average Chipotle employee earns $8.37 per hour. The number of employees at each

Chipotle restaurant varies from 18 to 40. Also, staffing patterns and work shift lengths. l

vary from restaurant to restaurant, season to season, and day to day, as do the busy

periods.

Chipotle's corporate headquarters establishes employment policies for its

restaurants. Chipotle's written policies require managers to provide employees with

meal and rest breaks. Managers are to determine when, or if, employees are permitted

to take breaks. Employees are not permitted to self-initiate breaks and are prohibited·

from skipping breaks. Chipotle mandates employees take one uninterrupted 30-minute

meal break if they work over five hours, and two 30-minute meal breaks if they work

more than 10 hours. Managers are to provide employees with a 10-minute rest break if

they work three and one-half hours or more. If employees work more than six hours a

day, they are to take two paid rest breaks of at least 10 minutes each.

2

•

•

•

•

II

•

•

•

•

•

•

Chipotle directs employees to record their breaks. Chipotle pays employees for

the time they take for breaks even though they are relieved of duty and free to leave

the restaurant, so there is no financial incentive for employees to record all breaks

accurately. Chipotle provides free food and beverages to encourage employees to take

their meal breaks and provides comfortable break facilities. Paying for meal periods

and providing free food is part of Chipotle's culture and helps Chipotle recruit and

.retain employees.

Hernandez worked in the Chipotle Manhattan Beach restaurant from February

2002 until it closed in May 2003. Soon thereafter, he worked in the Hawthorne

restaurant, where he remained until ChipotIe terminated his employment in July 2006.

During his employment, Hernandez was an hourly worker.

2. Procedure

a. The operative complaint

Hernandez filed this lawsuit against Chipotle on his behalf and on behalf of a

proposed class of similarly situated nonmanagerial employees. Hernandez alleged

Chipotle violated labor hlws by denying employees meal and rest breaks.

b. Chipotle's motion to decertify the class

Chipotle moved to deny class certification and strike the class allegations.

Chipotle contended it had met its responsibility under Californialaw to provide

(authorize and permit) employees with meal and rest breaks.

Chipotle submitted 57 declarations from employees who attested that they had

received all meal and rest breaks. The employees further declared that some

employees occasionally had forgotten to record breaks, or had recorded them

inaccurately. Chipotle submitted 16 manager declarations in which the managers

declared the following: Employees received meal and rest breaks in compliance with

state law. Management did not allow employees to return early from breaks. Because

Chipotle paid for breaks, employees did not always remember to clock in and out

when going on a break. When employees forgot to clock in and out at the beginning

or end of their shifts·, management instructed the employees to notify their manager,

3

•

•

•

•

•

•

•

•

•

•

•

who then corrected the records. But Chipotle instructed its managers not to correct

time records if an employee forgot to clock in and out for meal and rest breaks or if

they made a mistake in doing so, because their pay would not be affected.

Nonetheless, some managers edited employees' time records to record meal and rest

breaks when an employee forgot to clock in or out.

Chipotle also submitted the declaration of Human Resource Director Brian

Brown, who explained Chipotle's organization and methods of operation. He declared

in part: "Because crew members are paid for meal and rest breaks, they do not have a

financial incentive to record their breaks aCl:urately and occasionally fail to do so.

Some crew members simply forget to clock in or out or to record their breaks. . .. [I]f

a crew member records the start of a meal break and forgets to record the time it ends,

the meal break is still fully paid. As a result, the records do not always indicate that

. meal periods are taken, even when they are provided. They also do not indicate the

reason why breaks are not recorded, even when they are provided and made

available."

c. Hernandez's motion to certify the class

About two weeks after Chipotle filed its motion, Hernandez moved for class

certification. Hernandez estimated that the class consisted of thousands of current and

former employees who worked millions of shifts for Chipotle beginning in July 2003.

The proposed class excluded those individuals in managerial positions. Hernandez

conceded that California employers need only provide employees with rest breaks.

However, Hernandez cited Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th

949 to support his theory that California employers were obligated to ensure

employees took meal breaks.

Hernandez submitted a compilation of his time records. He also submitted

excerpts from his deposition in which he testified to the following: While employed

by Chipotle in Manhattan Beach, he always received his meal and rest breaks, except

on one occasion. However, when he worked in Hawthorne, managers interrupted his

meal breaks two to three times a w~ek.

4

•

•

•

•

•

•

•

•

•

•

•

Hernandez additionally submitted declarations from a total of 23

nonmanagement, hourly employees who worked at Chipotle restaurants in California.

The employees declared that sometimes their managers denied or interrupted their

breaks, in varying degrees.

Pursuant to court order, Chipotle served a computerized spreadsheet with

statistics relating to employee time records. Thereafter, Hernandez filed a

supplemental expert declaration from professor of statistics Richard Kakigi, Ph.D. He

had analyzed Chipotle's clock-in and clock-out data from July 1,2003 through

February 9, 2009, for nonexempt employees, "excluding employees who exclusively

occupied any of the five management positions for the entire class period." (Fn.

omitted, italics added.). Professor Kakigi concluded as follows: Ninety-two percent

of the employees had missed at least one meal break. On average, each employee

missed meal breaks on 20.5% of his or her workdays. "All stores (100%) had at least

one missed meal break. On average, each employee had a missed meal break on

20.5% of his or her workdays." Eighty-eight percent of employees had at least one

missed rest break, and on average each employee had a missed rest break on 13.0% of

his or her workdays. All stores (l00 %) had at least one missed rest break, and on

average each store had a missed rest break on 13.0% of its employee workdays.1 In

reaching his conclusions, Dr. Kakigi Classified as missed meal breaks instances where

the records did not reflect any break period, as well as instances where an employee

had taken a meal break of less than 30 minutes. He classified breaks of 30 minutes or

longer as meal breaks and breaks 10 to 29 minutes long as rest breaks.

In response, Chipotle argued the professor's conclusions had no value because

(1) he counted as a missed break any employee who refused to take a break, as well as

those who might have reported back to work one minute early; (2) the ~mployee

1 Thus, out of2,074,451 shifts, 424,341 shifts (or 20.5%) did not contain timepunches for a meal break of 30 minutes or longer. Of those employee shifts, there"were 270,245 workdays that did not contain time punches for a rest break within thefirst four hours of 10 minutes or longer, for a total of 13%.

5

•

•

•

•

•

•

•

•

•

•

•

records included those who worked occasionally as managers, thereby creating an

inherent conflict of interest among putative class members; (3) the records did not

establish a universal poliCy or practice as they demonstrated that on the "vast majority

of workdays and for the vast majority of employees, meal periods were taken"; and (4)

the records did not establish why breaks were not taken or were too short.

d. The trial court's ruling on the motion to decertify and themotion to certify

After a lengthy hearing, the trial court issued a comprehensive written ruling.

The court found Hernandez had established the factors of numerosity, ascertainability

of the class, typicality of Hernandez's claims, and adequacy of Hernandez and his

counsel as representatives. However, the court denied certification on the grounds that

individual issues predominated over common issues, and class treatment was not

superior to individual actions.

The trial court held that with regard to rest breaks, as conceded by Hernandez,

employers need only authorize and permit such breaks, which means to make them

, available. The trial court recognized that the California Supreme Court had granted

review of two cases to decide whether California law required employers to ensure

employees take meal breaks, or if the proper standard was that employers need only

provide employees with the opportunity to take such breaks.2 The trial court

concluded the Supreme Court likely was to decide California employers were required

to provide employees with the ability to take breaks, not to ensure breaks be taken.

The trial court further ruled that although there were common questions regarding

whether Chipotle's policy was to provide breaks, whether employees "missed or

received shorten[ed] meal and rest breaks[,] and whether such constituted an unfair

business practice, these questions do not predominate." The trial court stated that if

2 The two cases presently before the Supreme Court (Brinker Restaurant v. S. c.,review granted Oct. 22, 2008, S166350, and Brinkley v. Public Storage, reviewgranted Jan. 14,2009, S168806) will address the "proper interpretation of Californiastatutes and regulations governing an employer's duty to provide meal and rest breaksto hourly workers."

6

•

•

•

•

•

•

•

•

•

•

•

the Supreme Court held employers had to ensure employees take breaks, class action

treatment of this case would be appropriate.

The trial court found that class adjudication of the wage and hour break claims

was not manageable, nor would it provide a substantial benefit to the court or parties.

Rather, individual inquiry was "required to determine if [Chipotle] is liable for

denying proper meal and rest breaks to each of its thousands of employees." Further,

adjudication of these individual issues rendered classwide adjudication unmanageable

because, even if an employee's time record indicated a break was missed, that in and

of itself did not establish that Chipotle failed to provide, authorize or permit the

employee to take a meal or rest break. Additionally, Hernandez failed to present a

clear outline of how the court and parties could use a sampling of testimony to address

all of the individual questions that had to be answered.

DISCUSSION

1. Class actions and the standard of review

Code of Civil Procedure section 382 authorizes class actions "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 ...." (See also

Cal. Rules ofCt., rule 3.760 et seq.) Class certification requires the party seeking

certification to prove "(1) ... a sufficiently numerous, ascertainable class, (2) ... a

well-defined community of interest, and (3) that certification will provide substantial

benefits to litigants and the courts, i.e., that proceeding as a class is superior to other

methods. [Citations.] In tum, the 'community of interest requirement embodies three

factors: (1) predominant common questions of law or fact; (2) class representatives

with claims or defenses typical of the class; and (3) class representatives who can

adequately represent the class.' [Citation.]" (Fireside Bank v. Superior Court (2007)

40 Ca1.4th 1069, 1089 (Fireside Bank), citing among others, Code C.iv. Proc., § 382 &

Sav-On !?rug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,326 (Sav-On Drug

Stores).)

7

•

•

•

•

•

•

•

•

•

•

•

"A class action may be maintained even if each member must individually

show eligibility for recovery or the amount of damages. But a class action will not be

permitted if each member is required to 'litigate substantial and numerous factually

unique questions' before a recovery may be allowed. [Citations.] ... '[I]fa class

action "will splinter "into individual trials," common questions do not predominate and

litigation of the action in the class format is inappropriate. [Citation.]' [Citations.]"

(Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.AppAth 723, 732 [order denying

certification on misclassification allegations affirmed where trial court found tasks

performed by restaurant managers, and time devoted to each task varied widely from

restaurant to restaurant].)

A ruling on certification is reviewed for abuse of discretion. (Sav-On Drug

Stores, supra, 34 Ca1.4th at p. 326.) "Because trial courts are ideally situated to

evaluate the efficiencies and practicalities of permitting group action, they are afforded

great discretion in granting or denying certification. The denial of certification to an

entire class is an appealable order [citations], but in the absence of other error, a trial

court ruling supported by substantial evidence generally will not be disturbed 'unless

(1) improper criteria were used [citation]; or (2) erroneous legal assumptions were

made [citation]' [citation]. Under this standard, an order based upon improper criteria

or incorrect assumptions calls for reversal ' "even though there may be substantial

evidence to support the court's order.'" [Citations.]" (Linder v. Thrifty Oil Co.

(2000) 23 Cal.4th 429,435-436 (Linder); accord, Sav-On Drug Stores, supra, atpp.

326-327.)

Thus, "[t]he appeal of an order denying class certification presents an exception

to the general rule that a reviewing' court will look to the trial court's result, not its

rationale. If the trial court failed to follow the correct legal analysis when deciding

whether 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." , [Citations.] In other words, we review only the reasons

given by the trial court for denial of class certification, and ignore any other grounds

8

2.

•

•

•

•

•

•

•

•

•

•

•

that might support denial." (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th

. 816, 828-829.) " '[W]here a certification order turns on inferences to be drawn from

the facts, " 'the reviewing court has no authority to substitute its decision for that of

the trial court.' ", [Citations.]" (Sav-On Drug Stores, supra, 34 Ca1.4th at p: 328.)

Employers need only provide employees with breaks.

The trial court first held that California law requires that employers provide, but

not ensure, employees take meal and rest breaks. Since we must ascertain if the trial

court's ruling was based upon an erroneous legal analysis (Linder, supra, 23 Ca1.4th at

pp. 435-436), we tum to this legal issue.

a. The trial court's legal analysis was correct.

Labor Code section 226.7, subdivision (a) states: "No employer shall require

any employee to work during any meal or rest period mandated by an applicable order

of the Industrial Welfare Commission." Labor Code section 512, subdivision (a)

states that employers must provide employees with meal periods of not less than30

minutes if they work shifts of more than five hours per day and a second 30-minute

meal break if they work shifts longer than 10 hours per day.3

"[T]he Industrial Welfare Commission (IWC) 'is ... empowered to formulate

regulations (known as wage orders) governing employment in the State of

California[.]' " (Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524,

1534, citing Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557,561-

3 Labor Code section 512, subdivision (a) states: "An employer may not employan employee for a work period of more than five hours per day without providing theemployee with a meal period of not less than 30 minutes, except that if the total workperiod per day of the employee is no more than six hours, the meal period may bewaived by mutual consent of both the employer and employee. An employer may notemploy an employee for a work period of more than 10 hours per day withoutproviding the employee with a second meal period of not less than 30 minutes, exceptthat if the total hours worked is no more than 12 hours, the second meal period may bewaived by mutual consent of the employer and the employee only if the first mealperiod was not waived." (Italics added.)

9

•

•

•

•

•

•

•

•

•

•

•

562.) Labor Code section 516 specifically authorizes the IWC to "adopt or amend

working condition orders with respect to break periods, meal periods, and days of rest

for any workers in California consistent with the health and welfare of those workers."

IWC's wage orders are codified in the California Code of Regulations. (E.g., Sav-On

Drug Stores, supra, 34 Cal.4th at p. 324; Ghazaryan, supra, at p. 1534.)

Wage Order 5-2001, which governs restaurant workers like the Chipotle

employees, echoes the language of Labor Code section 512. It requires employers to

provide employees with a meal period of not less than 30 minutes for a work period of

more than five hours. (Cal. Code Regs., tit. 8, § 11050, subd. 11.)4 Similarly, Wage

Order 5-2001 states that employers are to authorize and permit employees to take a

10-minute rest break for every four hours worked. (Cal. Code Regs., tit. 8, § 11050,

subd. 12.)5 California employers are required to keep accurate records of meal, but

4 California Code of Regulations, title 8, section 11050, subdivision 11 states inpertinent part: "Meal Periods [~] (A) No employer shall employ any person for awork period of more than five (5) hours without a meal period of not less than 30minutes, except that when a work period of not more than six (6) hours will completethe day's work the meal period may be waived by mutual consent of the employer andthe employee. . .. [~ (B) If an employer fails to provide an employee a meal periodin accordance with the applicable provisions of this order, the employer shall pay theemployee one (1) hour of pay at the employee's regular rate of compensation for eachworkday that the meal period is not provided." (Italics added.) .

5 California Code of Regulations, title 8, section 11050, subdivision 12 states inpart: "Rest Periods [~ (A) Every employer shall authorize and permit all employeesto take rest periods, which insofar as practicable shall be in the middle of each workperiod. The authorized rest period time shall be based on the total hours worked dailyat the rate often (10) minutes net rest time per four (4) hours ormajor fraction thereof.However, a rest period need not be authorized for employees whose total daily worktime is less than three and one-half (3 1/2) hours. Authorized rest period time shall becounted, as hours worked, for which there shall be no deduction from wages. [~ (B)If an employer fails to provide an employee a rest period in accordance with theapplicable provisions of this order, the employer shall pay the employee one (1) hourof pay at the employee's regular rate of compensation for each workday that the restperiod is not provided." (Italics added.)

10

•

•

•

•

•

•

•

•

•

•

•

not rest, breaks. (Cal. Code Regs., tit. 8, § 11050, subd. 7; cf. Franco v. Athens

. Disposal Co., Inc. (2009) 171 Cal.AppAth 1277, 1299.)

Hernandez admits employers must provide, i.e., authorize and permit,

employees to take rest breaks, but contends a different stand·ard applies to meal breaks

and thus, the trial court's legal analysis was faulty. This contention is not persuasive.

"The California Supreme Court has described the interest protected by meal break

provisions, stating that '[a]n employee forced to forgo his or her meal period ... has

been deprived of the right to be free of the employer's control during the meal period.'

Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1104 (2007). It is an

employer's obligation to ensure that its employees are free from its control for thirty

minutes, not to ensure that the employees do any particular thing during that time.

Indeed, in characterizing violations of California meal period obligations in Murphy,

the California Supreme Court repeatedly described it as an obligation not to force

employees to work through breaks. [Citation.]" (Brown v. Federal Express Corp.

(C.D.Cal. 2008) 249 F.R.D. 580, 585, fn. omitted.)

Consistent with the purpose of requiring employers to provide employees with

meal breaks, the Labor Code and the IWC use mandatory language (e.g., Lab. Code, §

226.7, subd. (a) ["No employer shall require any employee to work during any meal or

rest period ..."D precluding employers from pressuring employees to skip breaks,

declining to schedule breaks, or establishing a work environment discouraging or

preventing employees from taking such breaks. The mandatory language does not

mean employers must ensure employees take meal breaks. Our interpretation of the

meal break requirement is supported by the definition of the word "provide" as used in

Labor Code sections 226.7, subdivision (b), and 512, subdivision (a), as well as

California Code of Regulations, title 8, section 11050, subdivisions 11 and 12. (See

fn. 4 & fn. 5, ante.) "Provide" meaps "to supply or make available." (Webster's

Ninth Collegiate Dictionary (1986) p. 948.)

Hernandez relies on Cicairos v. Summit Logistics, Inc., supra, 133 Cal.AppAth

949 (Cicairos) to argue employers must ensure meal breaks are taken. In Cicairos, an

11

•

•

•

•

e

•

•

•

•

•

•

employer did not schedule meal breaks for its truck driver employees, established a

system whereby drivers were pressured to make a certain number of trips during a

work day, had a monitoring system to track drivers, and did not include a code for rest

stops in its computer system. (Id. at p. 962.) These and other aspects of the work

environment effectively deprived drivers of an opportunity to take breaks. In

reversing a summary judgment granted to the employer with regard to meal break

claims, the appellate court relied upon a January 28, 2002 opinion letter from the

Division of Labor Standards Enforcement (DLSE). Cicairos stated, "Under the facts

presented ... the [employer's] obligation to provide the plaintiffs with an adequate

meal period is not satisfied by assuming that the meal periods were taken, because

employers have 'an affirmative obligation to ensure that workers are actually relieved

of all duty.' (Dept. of Industrial Relations, DLSE, Opinion Letter No. 2002.01.28

(Jan. 28,2002) p. 1.)" (Cicairos, supra, at pp. 962-963.) With regard to rest breaks,

Cicairos held "the [employer] could ... be liable if the plaintiffs did not take their full

lO-minute rest breaks because, as a practical matter, the defendant did not permit the

plaintiffs to take their rest breaks. (See Cal. Code Regs., tit. 8, § 11090, subd. 12(A)

[employer must authorize andpermit resfperiod].) ... [~] The defendant has not

proven it supplied the plaintiffs with their rest periods; therefore, summary judgment

was improper." (Cicairos, supra, at p. 963.)6

Cicairos does not assist Hernandez. The DLSE has withdrawn the opinion

letter upon which Cicairos based its analysis. (Dept. of Industrial Relations, DLSE,

Opinion Letter (October 23,2008) ["Court Rulings on Meal Periods"].) -(2AA263)­

In doing so, the Division stated: "Taken together, the language of the statute and the

regulation, and the cases interpreting them demonstrates compelling support for the

position that employers must provide meal periods to employees but do not have an

additional obligation to ensure that such meal periods are actually taken." (Dept. of

6 Cicairos concerned Wage Order 9-2001 (Cal. Code Regs., tit. 8, § 11090)covering workers in the transportation industry, but the pertinent wage orderprovisions are materially similar.

12

•

•

•

•

e'

•

•

•

•

•

•

Industrial Relations, DLSE, Opinion Letter (October 23,2008) at p. 2.) Further,

Cicairos's conclusion relating to meal breaks did not depend upon an "ensure"

standard. Rather, the facts in Cicairos were such that the employer's business

practices effectively deprived employees of the ability to take meal breaks.rJDept. of

Industrial Relations, DLSE, Opinion Letter (October 23,2008) at p. 5.)

Hernandez's position also is not practical. "Requiring enforcement of meal

breaks would place an undue burden on employers whose employees are numerous or

who ... do not appear to remain in contact with the employer during the day. See

White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088-89 (N.D.Cal.2007). It would

also create perverse incentives, encouraging employees to violate company meal break

policy in order to receive extra compensation under California wage and hour laws.

[Citation.]" (Brown v. Federal Express Corp., supra, 249 F.R.D. at p. 585.) Thus,

although the Supreme Court has yet to decide the issue, we hold that the trial court

used the correct legal analysis with regard to meal breaks.

b. The trial court was not foreclosed from addressing the legal issue.

Citing Linder, supra, 23 Cal.4th 439, 'Hernandez argues the trial court should

not have addressed whether employers must provide meal breaks rather than ensure

they be taken because a certification issue is "essentially a procedural one that does not

ask whether an action is legally or factually meritorious." (Id. at pp. 439-440; accord,

Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.)

However, neither Linder nor other Supreme Court authoritY forecloses courts

from examining a legal issue in addressing certification. "[Linder] said only that a

plaintiff need not establish a likelihood of success on the merits in order to obtain class

certification. It does not follow that, in determining whether the criteria of Code of

Civil Procedure section 382 are met, a trial or appellate court is precluded from

considering how various claims and defenses relate and may affect the course of the

litigation, considerations that may overlap the case's merits. [Citation.] ... Linder . ..

expressly recognized that 'whether the claims or defenses of the representative

plaintiffs are typical of class claims or defenses' was an issue that might necessarily be

13

•

•

•

•

•

•

•

•

•

•

•

intertwined with the merits of the case, but which a court considerin~certification

necessarily could and should consider. [Citations.]" (Fireside Bank, supra, 40 Ca1.4th

at pp. 1091-1092; Washington Mutual Bank v. Superior Court (2001) 24 Ca1.4th 906

[choice of law issue had to be resolved ~efore certification of nationwide class was

addressed as it was key to predominance and manageability]; Walsh v. IKON Office

Solutions, Inc. (2007) 148 Cal.AppAth 1440, 1450 [affirmative defenses may be

considered to defeat certification]; contra, Medrazo v. Honda ofNorth Hollywood

(2008) 166 Cal.AppAth 89, 97-98.)

Hernandez also points to Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th

1286 (Jaimez) to'support his argument that the trial court should not have examined

the provide versus ensure legal issue. In Jaimez, Division One of this district reversed

the denial of class certification in a case that, like Cicairos, involved employees who

were on the road most of the day or at customers' places of business. Jaimez found it

unnecessary to decide whether employers need only "provide" meal breaks and not

ensure employees take them. (Jaimez, supra, at pp. 1303-1304.) The declarations

established there were predominant common factual issues whether the employees

missed meal breaks because of the employer's practice of designating delivery

schedules and routes that made it impossible for employees to both take their breaks

and complete their deliveries on time. (Id. at pp. 1300-1301.) Before 2006, the

employer had a practice of deducting 30 minutes per shift for meal breaks even if no

break was taken, and after 2006, employees had to sign a manifest indicating they took

a meal·break, regardless of whether they took the break, in order to get paid. (Id. at p.

1304.) Since the employer's practices presented the predominant common factual

issues on the meal and rest break claims, Jaimez did not have to consider whether the

employer violated a duty to provide or to ensure breaks. Jaimez does not hold that in

every wage-and-hour case, even those presenting entirely different factual issues,

courts may not consider the merits of a legal issue in order to rule on class

certification. The trial court appropriately decided the threshold legal issue as it could

not otherwise assess whether class treatment was warranted.

14

•

•

•

•

•

•

•

•

•

•

••

3. The trial court did not abuse its discretion in denying certification.

a. There is substantial evidence supporting the trial court's rulingthat individual issues predominate.

The declarations and depositions of putative class members showed Chipotle

did not have a universal practice with regard to breaks. Some employees declared they

always missed meal breaks; some declared they received meal breaks, but not rest

breaks; one declared his meal and rest breaks were combined; Some did not declare

they were denied meal breaks; and others declared their breaks were delayed.

Employees declared their meal breaks w~re interrupted with varying degrees of

frequency, as demonstrated by one employee who declared he was frequently denied

his first rest break, but always denied his second break. In the 73 declarations

provided by Chipotle, employees declared they had always been provided breaks.

Hernandez himself admitted that except for one occasion, managers in the Manhattan

Beach restaurant always provided him with an opportunity to take his breaks, but

managers in the Hawthorne restaurant denied him meal breaks two or three times a

week.

The evidence before the trial court suggested that in order to prove Chipotle

violated break laws, Hernandez would have to present an analysis restaurant-by­

restaurant, and perhaps supervisor-by-supervisor. Given the variances in the

declarations, Hernandez did not demonstrate a common practice or policy. (E.g., Ali v.

U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1350 ["When variations in proof of

harm require individualized evidence, the requisite community of interest is missing

and class certification is improper"]; compare with Bujil v. Dollar Financial Group,

Inc. (2008) 162 Cal.App.4th 1193 [certification appropriate where there were

allegations employer had policy of prohibiting certain employees from taking breaks].)

Even if Chipotle managers directed when employees could take breaks, there was

substantial evidence that Chipotle's supervisory personnel did not uniformly handle

breaks. The only evidence of a company-wide policy and practice was Chipotle's

. evidence that it provided employees with meal and rest breaks as required by law.

15

b.

•

•

•

•

•

•

•

•

•

•

The time records do not demonstrate Hernandez can proveon a classwide basis that Chipotle failed to provide employeeswith breaks.

Hernandez argues he can prove Chipotle has not provided meal and rest breaks

by using employee time records that show employees did not clock in and out for meal

and rest breaks. However, there is substantial evidence the time records may be

unreliable, because Chipotle paid employees for breaks and, thus, employees lacked an

incentive to clock in and out, and many did not do so. Chipotle instructed managers

not to correct erroneous time records of meal and rest breaks since ChipotIe paid

employees for breaks, so there was no benefit gained by such time-record corrections.

A trier of fact will have to ascertain if Chipotle employees actually missed breaks, or

simply forgot to record them, as well as the reason why employees might have missed

breaks or went back to work before completing them. In light of the size .of the

proposed class, there could be thousands of mini-trials to address the factUal issues,

supporting the trial court's conclusion that class treatment is not superior to individual

lawsuits. (Kenny v. Supercuts, Inc. (N.D.Cai. 2008) 252 F.R.D. 641,646 [class

allegations that employer failed to provide meal breaks; disparity in employees' time

records showed individual inquiry required].)7

7 Hernandez also argues Chipotle cannot rely upon the inaccuracy of its ownrecords to defeat certification because Chipotle was required to keep accurate recordsof all meal breaks taken. (Cal. Code Regs., tit. 8, § 11050, subd. 7; Aguiar v. CintasCorp. No.2 (2006) 144 Cal.App.4th 121, 134-135 [employer who failed to keepaccurate records in wage and hour claim class action case had burden of proof whereemployer permitted employees to work on many contracts and not just one at issue andwhere required records would have permitted dete~inationof subclasses]; Hernandezv. Mendoza (1988) 199 Cal.App.3d 721 [in non-class action case, burden of producingevidence shifted to employer where employer falsified records and failed to keepaccurate records of work performed].) First, we doubt this argument applies to restbreak claims, as employers are not obligated to keep records of rest 1:>reaks. (Cal. CodeRegs., tit. 8, § 11050, subd. 7.) Further, here there was no evidence Chipotle falsifiedrecords or purposefully failed to keep records. Certification of a class is not requiredsimply because an employer's records of meal and rest breaks are not 100 percentaccurate.

16

•

•

•

•

•

•

•

•

•

•

•

c. Hernandez's evidence does not undermine the trial court's ruling.

In the trial court, Hernandez pointed to Professor Kakigi's analysis to suggest

certification was appropriate because sampling oftestimony and expert analysis would

prove the case. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 333 & fn. 6.) The trial

court correctly concluded that introducing evidence by the use of a sampling of

employee testimony was not manageable. "It is not sufficient ... simply to mention a

procedural tool; the party seeking class certification must explain how the procedure. .

will effectively manage the issues in question." (Dunbar v. Albertson's, Inc. (2006)

141 Cal.App.4th 1422, 1432.)

Professor Kakigi did not show a sampling of testimony would simplify a trial.

He found that 92 percent ofChipotle's employees missed at least one meal break. We

have already noted there are reasons to doubt whether the time records on which his

analysis was based are reliable proof of missed breaks. As the trial court noted, "What

percentage of the 92% have innocent explanations? If, for example, 75% of the 92%

have innocent explanations for the missed break, it would not be rational to allow each

side the same number of 'samples' to put forth at trial. The Court must know this

percentage in order to determine how many samples to allocate to each party. A

census on the 92% of employees is required."

Additionally, Professor Kakigi premised his conclusions on the erroneous legal

standard that Chipotle had to ensure employees took breaks. He assumed a break was

missed if an employee clocked back in one minute early from a break, without

accounting for why that occurred. As a practical matter, employees may have

voluntarily chosen to return to work early. There was evidence some employees

occasionally forgot to record their breaks and sometimes they recorded breaks

inaccurately. Even if the employee records showed an employee did not take a break

at all, the reason for that "missed" break must be ascertained, because, for example, if

that employee willingly decided to forgo a break, there was no unlawful conduct.

Further, the professor's conclusions did not demonstrate Chipotle had a practice

of denying breaks. Professor Kakigi stated that 92 percent of employees missed a

17

•

•

•

•

•

•

•

•

break and all restaurants showed missed breaks. However, Professor Kakigi did not

demonstrate a pattern or practice of missed breaks, for example, with evidence that

missed breaks occurred more frequently at certain times, in specific restaurants, during

certain seasons or shifts; nor did he offer any explanation why some employees at the

same restaurant had different experiences.

d. There is substantial evidence of conflicts of interest among theputative class members.

The last reason provided by the court to deny certification was that members of

. the putative class had conflicts of interests. There was substantial evidence that some

employees move in and out of supervisory roles with the responsibility to provide

meal and rest breaks for themselves and other employees oIl: the shift, without a

change of title or other indicia of managerial status. Therefore, some putative class

members may accuse other putative class members of violating their m~al and rest

period rights. The trial court did not abuse its discretion in concluding the likelihood

that some class members might testify against other class members demonstrated

antagonism of so substantial a degree as to defeat the purpose of class certification.

(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 472).

DISPOSITION

Because there is substantial evidence to support the trial court's discretionary

ruling, we affirm the order denying certification. Chipotle is awarded costs on appeal.

GRIMES, J.

We Concur:

• FLIER, ACTING P. J. O'CONNELL, J.*

•

•

* Judge of the Los Angeles Superior Court, assigned by the Chief Justicepursuant to article VI, section 6 of the California Constitution.

18

•

•

•

Filed 10/28/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

. SECOND APPELLATE DISTRICT

DIVISION EIGHT

•

•

•

ROGELIO HERNANDEZ,

Plaintiff and Appellant,

v.

CHIPOTLE MEXICAN GRILL, INC.,

Defendant and Respondent.

THE COURT:

B216004(Super. Ct. No. BC373759)

ORDER MODIFYING OPINION,CERTIFYING FOR PUBLICATION,AND DENYING PETITION FORREHEARING

[NO CHANGE IN JUDGMENT]

•

•

•

•

•

The opinion filed on September 30,2010, is modified as follows:

On page 4, the first full paragraph in its entirety is replaced with the following

modified paragraph:

ChipotIe also submitted the declaration of Human Resource

Director Brian Brown, who explained Chipotle's organization and

methods of operation. He declared in part: "Because crew members are

paid for meal and rest breaks, they do not have a financial incentive to

record their breaks accurately and occasionally fail to do so. . .. [I]f a

crew member records the start of a meal break and forgets to record the

time it ends, the meal break is still fully paid." Several Chipotle crew

members and managers corroborated Mr. Brown's testimony that

employees do not always remember to "clock-out" before going on a

-_.-'

•

•

•

break. For example, David Pineda; the service manager at Chipotle's

Hawthorne location testified, "Although we emphasize that employees

should clock in and out for their meal and rest periods, I am aware that

some employees do not always do so. Because the company pays

employees for their meal and rest period time, employees do not always

think to clock-out before going on a break."

•

•

This modification effects no change in judgment.

The opinion filed on September 30, 2010, was not certifi~d for publication in

the Official Reports. For good cause the opinion, as modified, should now be

published in the·Official Reports, and it is so ordered.

Appellant's petition for rehearing is denied.

•

•FLIER, Acting P. J. GRIMES, J. O'CONNELL, 1.*

•

•

+

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant toarticle VI, section 6 of the California Constitution.

•2

•

•~':<

m

~,

><::I:

~~ CbOJ=tOJ

•

•

•

•

•

•

•

•

•

•

•

•

•

•

" . .'

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for.publication or ordered published. except as spe«<ified by rule 8.1115(b). This opinion has not been certified forpublication or ordered published for purposes of rule 8.1115. .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

-1"J.

•

ROGELIO HERNANDEZ,

Plaintiff and Appellant,

v.

CHIPOTLE MEXICAN GRlLL, INC.;

Defendant and Respondent.

B216004

(Los Angeles CountySuper. Ct. No. BC373759)

COURT OF APPEAL· SECOND D15T.

WIIl1~IQ)SEP 302010

JOSEPH A. lANE ..Clerk

•

•

•

•

•

Deputy ClerK

APPEAL from the judgment of the Superior Court of Los Angeles County.

Terry A.Green, Judge. Affinned.

Altshuler Berzon, Michael Rubin, James M.Finberg, Eve Cervantez,

Danielle E. Leonard; Rastegar & Matern, Matthew J. Matern and Douglas W. Perlman

for Plaintiff and Appellant. .

Sheppard, Mullin, Richter & Hampton, Richard J. Simmons and Geoffrey D.

DeBoskey for Defendant and Respondent.

* * ** * * * * **

•

•

•

•

•

•

•

•

•

•

•

.INTRODUCTION·

Plaintiff and app~llant Rogelio Hernandez (Hernandez) appeals from the order

denying his motion for class certification and granting the motion to deny class

certification of defendant and respondent Chipotle Mexican Grill, Inc. (Chipotle). We

.hold that the trial court did not abuse its discretion and affirm. In doing so, we

.. conclude that employers must provide·employees with breaks, but need not ensure. .

employees take breaks.

FACTUAL AND PROCEDURAL BACKGROUND

1~ Factual background

Chipotle is a fast fo<)d restaurant chain, currently employing about 3,000 hourly

.employees in its approximately 130 California restaurants. AIIChipotle employees are

nonexempt, hourly workers entitled to overtime compensation when earned, includfug

managers, e~cept for the salaried position of"restaurateur." Each Chipotle restaurant·

.is managed by either a restaurateur or a generalmanager. Some employees move in

and out of supervisory roles. For example, employees may be responsible for

scheduling meal and rest breaks on some shifts and weeks, but not on others. The

average Chipotle employee earns $8.37 per hour. The number ofemployees at each. . .

Chipotle restaurant varies frmn 18to 40. Also, staffing patterns and work shift lengths

vary from restaurant to restaurant, season to season, and day to day, as do the busy

periods.

Chipotle's corporate headquarters establishes employment policies for its. . . . .

restaurants. Chipotle's written poliCies require managers to provide employees with..meal and rest breaks. Managers are to determine when, or if, employees are permitted

to~take breaks. Employees are not pennitted to self-initiate breaks and are.prohibited

from skipping breaks. Chipotle mandates employees take one uninterrupted 30-minute

meal break if they work over five hours, and two 30-minute meal breaks if they work

more than 10 hours. Managers are to provide employees with a 1O-minute. rest break if

they work three and one:-half hours or more. If employees work more than six hours a

day, they are to take two paid rest breaks of at least 10 minutes each..

2

•

•

•

•

•

•

•

•

•

•

•

Chipotle directs. employees to record their breaks. Chipotle pays employees for

the time they take for breaks even though they are relieved of duty mid free to leave

the restaurant, so there is no financial incentive for employees to record all breaks

accurately. Chipotle provides free food and beverages to encourage employees to take

their meal breaks and provides comfortable break facilities. Paying for meal periods

and providing free food is part of Chipotle's culture and helps Chipotle recruit and

retain employees.

Hernandez worked in the Chipotle Manhattan Beach restaurant from February

2002 until it closed in May 2003. Soon thereafter, he worked in the Hawthorne

restaurant, where he remained until Chipotle terminated his employment in July 2006.

During hisem:ployment, Hernandez was an hourly worker.

2. Procedure .

a. The operative complaint

.Hernandez filed this lawsuitagainst Chipotle on his behalf and on behalf of a .

proposed Class of sim~larly situated .nonmanagerial employees. Hernandez alleged

Chipotle violated labor laws by denying employees meal and rest breaks..

b. .Chipotle's motion to decertify the class

Chipotle moved to deny class certification and strike the class allegations.

Chipotle'contended it had met its responsibility under California law to provide

(authoriie and permit) employees with meal and re~t breaks.·

Chipotle submitted 57 declarations from employees who attested that they had

received all meal and rest breaks. The employees further declared that some

employees occasionaI1y had forgotten to record breaks, or had recorded them

inaccurately. Chipotle submitted 16 manager declarations in which the managers .

declared the following: Employees received meal and rest breaks in compliance with

state law. 'Management did not allow employees to return early from breaks. BecauSe

Chipotle paid for breaks, employees did not always remember to clock in and out

when going on a break. When employees forgot to clock in and out at the beginning

or end of their shifts, management instructed the employees to notify their manager,

3

• ('~.,.;... :~.

0._.• C'·..

•

•

•

•

•

•

•

•

•

•

who then corrected the· records. But Chipotle instructed its managers nQt to correct

time records if an employee forgot to clock in and out for meal and rest breaks·or·if

they made a mistake in doing so, because their pay would not be affected.

Nonetheless, some managers edited employees' time records to record meal and rest'

breaks when an employee forgot to clock in or out.

Chipotle also submitted the declaration of Human Resource Director Brian

Brown, who explained Chipotle's organization and methods of operation. He declared

in part: "Because crew members are paid for meal and rest breaks, they do not have a

.financial incentive to record their breaks accurately and occasionally fail to do so.

Some crew members simply forget to clock inor out or to record their breaks.... [I]f

a crew member records the startof a meal break and forgets to record the time it ends, .

the meal break is still fully paid. As a result, the ·reco:t;'ds do not always indicate that

meal periods are taken~ even when they are provided., They also do not indicate the

reason why breaks are not recorded, even when they are provided and made

available."

c. 'Hernandez's motion to certify the class

About two weeks after Chipotle filed its motion, Hernandez moved for class

" certification. Hernandez estimated that the class consisted of thousands of current and

former employees who worked millions of shifts for Chipotlebeginning in July 2003:

The proposed class excluded those individuals in managerial positions. Hernandez '

, conceded that Ca~ifornia employers need only provide employees with rest breaks.

However, Hernandez cited Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.AppAth

'949 to support his theory that California employers were obligated to ensure

employees took meal breaks.'

Hernandez submitted a compilation of his, time records. He also submitted

excerpts from his deposition in which he testified to the following: Whileemployed

by Chipotle in Manhattan Beach, he always received his meal and rest breaks, except

on one occasion. However, when he worked in Hawthorne, managers interrupted his "

meal breaks two to three times.a week.

4

•

•

•

•

•

•

•

•

•

••

•

Hernandez additionally submitte~ declarations from a total of 23

nonmanagement, hourly employees who worked at Chipotle restaurants in California.

The employees declared that sometimes their managers denied or interrupted their

breaks, in varying degrees.

Pursuant to court order, Chipotle served a computerized spreadsheet with

statistics relating to employee time records. Thereafter, Hernandez filed a

supplemental expert declaration from professor of statistics Richard Kakigi, Ph.D. He

had analyzed Chipotle's clock·in and clock-out data from July 1,2003 through·

February 9,2009, for nonexempt employees, "excluding employees who exclusively

occupied any of the five management positions for the entire class period." (Fn.

omitted, itaHcs added} Professor Kakigi concluded as follows: Ninety-two percent

. of the employees had missed at least one mealbreak. On average, each employee

.missed meal breaks on 20.5% of his or her workdays. "All stores (100%) had atleast

one missed meal break. On average, each employee had a missed meal break on

20.5% of his or her workdays." Eighty-eight percent of employees had at least one

missed rest break, and on average each employee had a missed rest break on 13.0% of

.his or her workdays. ,All stores (100 %) had at least one missed rest break, and on

average each store had a missed rest break on 13.0% of its employee workdays. I In. . .' . . .

reaching his concl~sions, Dr. Kakigi classified as missed meal breaks instances where

the records did notreflect any break period, as well as instances where an employee

. had taken a meal break of less than 30 minutes. He classified breaks of30 minutes or

longer as meal breaks and breaks 10 to 29 minutes long as rest breaks.

In response, Chipotle argued the professor's conclusions had no value because

(1) he counted as a missed break any employee who refused to take a break, as well as

those who might have reported back to work one minute early; (2) the employee

I Thus, out of2,074,451 shifts, 424,341 shifts (or 20.5%) did not contain timepunches for a meal break of30 minutes or longer. Of those employee shifts, therewere 270,245 workdays that did not contain time punches for a rest break within thefirst four hours of 10 minutes or longer, for a total of 13%.

5

•

•

•

•

•

•

•

•

•

•

•

f-:-'· ..·r·': •...

records included those who worked occasionally as managers, thereby creating an

inherent conflict of interest among putative class members; (3) the records did not

· establish a universal policy or practice as they demonstrated that on the ''vast majority

ofworkdays and for the vast majority of employees, ineal periods were taken"; and (4)

the records did not establish why breaks were not taken or were too short

d. The trial court's ruling on the motion to decertify and themotion to certify'

. After a lengthy hearing, the trial court issued a comprehensive written ruling.

The court found Hernandez had established the factors of numerosity, ascertainability .

of the class, 'typicality ofHernandez:s claims, and adequacy ofHernandez and his

. counsel as representatives. However, the court denied certification on the grounds that

individual issues predominated over common issues, and class treatment was not

.. superior to individual' actions.

The trial court held that with regard to rest breaks, as conceded by Hernandez,

employers need only authorize and permit such breaks, which means to make them. .

·available. The trial court recognized that the California Supreme Court had granted. . .

review of two cases to decide whether California law required employers to ensure. . .

. employees take meal breaks, or if the proper·standard was that employers need only· - . . . .

provide employees with the opportunity to take such breaks.2 The trial court

concludedthe SupremeCourt likely was to decide California employers were required

~o provide 'employees with the ability to.take breaks, not to ensure breaks be taken.

.The trial court further ruled that although there were common questions regarding

whether Chipotle's policy was to provide breaks, whether employees "missed or

received shorten[ed] meal and rest breaks[,] and whether such constituted an unfair

buSiness practice, these questions do not predominate:' The trial court stated that if

2 . The two cases presently before the Supreme Court (B~inker Restaurant v. S'c.,review granted Oct. 22, 2008, S166350, and Brinkley v. Public Storage, review. . .

'. grantedJan~ 14,2009, S168806) will address the "proper interpretation of California .statutes andreguiatiolls governing an employer's duty to provide meal and rest breaks'to hourly workers." .

6

•

•

•

•

•

•

•

•

•

•

•

the'Supreme Court held employers had to ensure employees take breaks, class action'

treatment of this case would be appropriate.

The trial court found that class adjudication of the wage and hour break claims

was not manageable, nor would it provide a substantial benefit to the court or parties.

Rather, individual inquiry was "required to determine if [Chipotle] is liable for

denying proper meal and rest breaks to each of its thousands of employees." Further,

adjudication ofthese individual issues rendered classwide adjudication unmanageable

because, even ifan employee's tim:e record indicated a break was missed, that'in and

of itselfdid not establish that Chipotle failed to provide, authorize or permit the

employee to ~e a meal or rest break. Additionally, Hernandez failed to present a

Clear outline of how the court and parties could use a sampling of testimony to address

all of the individual questions that had to be answered.

DISCUSSION

Class actions and the standard of review

Code ofCivil Procedure section 382 authorizes class actions "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 .. ,.." (See also.' . .

Cal. Rules ofCt., rule 3.760 et seq.) Class certification requires the party seeking'

certification to prove "(1) . ; . a sufficiently numerous, ascertainable Class, (2) ... a, ,

well-defmed community of interest, and (3)' that certification will provide substantial'"

benefits to litigants and the courts, Le., that proceeding as a class is superior to other

methods" [Citations.] In tum, the 'community of interest requirement embodies three.'. . .

factors: (1) predominantcommon questions oflaw or fact; (2) class representatives

with claims or defenses typical of the class; and (3) class representatives who can ' '

adequately represent the class.' [Citation.]" (Fireside Bank v. Superior 'Court (2007)

40 Cal.4th" 1069, 1089 (Fireside Bank), citing among others, Code Civ. Proc., § 382 &

Sav-On Drug Stores, Inc. v.. Superior Court (2004)34 Cal.4th 319,326 (Sav-On Drug

Stores).)

'7

••

•

•

•

•

•

•

•

•

•

•

"A class action may be· maintained even if each member must individually

show eligibility for recovery or the amount ofdamages. But a class action will not be

permitted if each member is required to 'litigate substantial and numerous factually

unique questions' before a recovery may be allowed~ [Citations.] ... '[I]f &class

action "will splinter intoindividu&l trials," common questions do not predominate and

litigation of the action in the class format is inappropriate. [Citation.]' [Citations.]"

(Arenas v. El Torito Restaurants, .Inc. (20 10) 183 Cal.App.4th 723, 732 [order denying

certification on misclassification allegations affirmed where trial court found tasks

performed by restaurant managers, and time devoted to each task varied widely from

restaurant to restaurant].)

A ruling on certification is reviewed for abuse ofdiscretion.. (Sav-On Drug..

Stor~s, supra, 34 Cai.4th at p. 326.) "Because trial courts are ideally situated to

evaluate the efficiencies and praCticalities ofpermitting group action, they are afforded

great discretion in granting or denying certification. The denial of certification to an

entire class is an appealable order [citations], but in the absence ofother error, a trial

court ruling supp()rted by substantial evidence generally will not be disturbed 'unless

(1) improper criteria were used [citation]; or (2) erroneous legal assumptions were

.. made [citation]' [citation].· Under this standard, an order based upon improper criteria

or incorrectassumptions calls for reversal ' "even though there may be substantial

evidence to support the court's order/' , [Citations.]" (Linder v. Thrifty Oil Co.

(2000) 23 Ca1.4th 429,435-436 (Linder); accord, Sav-OnDrug Stores, supra, at pp...

326-327.)

Thus, "[t]he appeal ofan order denyip.g class certification presents an exception

to the general rule .that a reviewing court will look to the trial court's result, not its

rationale. If the trial court failed to follow the correct legal analysis when deciding .. .

whether to certify a class action, 'an appellate court is required to reverse anorder

. denying ~lass certification ... , "even though there may be substantial evidellce to

. support the court's order.'" [Citations.] In other words, we review only the reasons·

given by the trial court for denial of class certification, and ignore any other grounds

8

2.

•

•

•

•

•

•

•

•

•

•

•

that might support deniaL" (Bartold v, Glendale Federal Bank (2000) 81 Cal.App.4th .

816, 828-829.) '" [W]here a certification order turns on inferences to be drawn from

the, facts, "'the reviewing court has no authority to substitute its decision for that of

the trial court.' ", [Citations.]" (Sav-On Drug Stores, supra, 34 Cal.4th at p. 328.)

Employers need only provide employees with breaks.

The trial court first held that California law requires that employers provide, but

not ensure, employees take meal and rest breaks. Since we must ascertain if the trial

. court's ruling was based upon an erroneous legal analysis (Linder, supra, 23 Cal.4th at

pp. 435-436), we tum to this legal issue.

a. The trial court's legal analysis was correct.

Labor Code section 226.7, subdivision (a) states: ''No employer shall require

any employee to work during any meal or rest period mandated by an applicable order

of the Industrial Welfare Commission." Labor Code section 512, subdivision (a)

states that employers must provide employees with meal periods of not less than 30

minutes if they work shifts ofmore than five hours per day and a second 30,-ininute

.meal break if they work shifts longer than 10 hours per day.3

"[T]he Industrial Welfare Commission (IWC) 'is ... empoweredto formulate

regulations (known as wage orders) governing employment in the State of

California[.]' " (Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.AppAth 1524,

1534, citing Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557,561-

3 Labor Code section 512, subdivision (a) states: "An employer may not employan employee for a work period of more than five hours per day without providing theemployee with a meal period of not less than 30 minutes, except that if the total workperiod per day of the employee is no more than six hours, the meal period may bewaived by mutual consent of both the employer and employee. An employer may notemploy an employee for a work period ofmore than 10 hours per day withoutproviding the employee with a second meal period ofnot less than 30 minutes, exceptthat if the total hours worked is no more than 12 hours, the second meal period may bewaived by mutual consentof the employer and the employee only if the frrst mealperiod was not waived." (Italics added.)

9

•

•

•

•

•

."•

.'•

•

(;; "

......-.:(,,-.--- .

562.) Labor Code section 516 specifically authorizes the IWC.to "adopt or amend

, working' condition ()rders with respect to break,periods, meal periods,and days ofrest

,for any workers in California consistent with the health and welfare ,of those workers." ,

IWC's \¥age orders are codified in the California Code of Regulations. (E.g.,'Sav-On '

Drug Stores, supra, 34Cal.4th at p. 324; Ghazaryan, supra, at p.1534.)

Wage Order 5-2001, which governs restaurantworkers like the Chipotle.employees, echoes the language of Labor Code section 512. It requires employers to

provide employees with a meal period ofnot less than 30 mmutes for a work period of

more than five hours. (Cal. Code Regs., tit. 8, § 11050,subd. 11.)4 Similarly, Wage

,Order 5-2001 sUites that employers are to authorize andpermit employees to take a

10-minute rest break for every four hours worked. (Cal. Code Regs., tit. 8, § 1i 050,

, subd. 12.)5 California employers are required to keep accurate records of meal, but

,4 "California Code of Regulations, title 8, seCtion 11050, subdivision 11 states inpertinent part: "MealPeriods [m (A) No employer shall employ anYlperson for a . 'work period of more than five (5) hours without a meal period ofnot less than 30

, "minutes~ except that when a work period ofnot more than siX (6) hours will completethe day's work the meal period may be waivedby mutual consent of the employer andthe employee. . .. [m' (B) If an employer fails to provide an employee a meal period'in accordance with the applicable provisions of this order,the employer shaltpay theemployee one (1) hour ofpay at the employee's regular rate ofcompensation for each

, workday that the meal period is not provided;" '(Italics added.) ,

5 California Code of Regulations, title 8, section 11050, subdivision 12 states inpart: "Rest Periods [m (A) Every employer shall authorizean4permit all employeesto take rest periods, which insofar as practicable shall be in the middle of each workperiod. The authorized rest period time shall be based on the total hours worked dailyat the rate often (10) minutes net resttimeper four (4) hours or major fraction thereof.However, a rest period need not be authorized for employees whose total daily work'time is less than three and one-half (3 1/2) hours. Authorized rest period time shall becoUnted, as hoursworked~ for which there shall be no deduction from wages. [f1, (B)If an employer fails to provide an employee a rest period in accordance with theapplicable provisions of this order, the employer shall pay the employee'one (1) hourofpay at the employee's regular rate ofcompensation for each workdaY',that ,the restperiod is not provided." (Italics added.)

10

•

•

•

•

•

•

•

•

•

•

•

not rest, breaks. (Cal. Code Regs., tit. 8,§ 11050, subd. 1; cf. Franco v. Athens

Disposal Co., Inc. (2009) 171 Cal.AppAth 1277, 1299.)

Hernandez admits employers must provide, i.e.~ authorize andpermit,

employees to take rest breaks, but contends a different standard applies to meal breaks

and thus, the trial court's legal analysis was faulty. This contention is not persuasive.

"The California Supreme Court has described the interest protected by meal break

provisions, stating that '[a]nemployee forced to forgo his or her meal period ... has

been deprived of the right to be free of the employer's control during the meal period. '

Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1104 (2007). It is an

employer's obligation to ensure that its employees are free from its control for thirty

minutes, not to ensure that the employees do any particular thing during that time.

Indeed, in characterizing violations ofCalifornia meal period obligations in Murphy,

the California Supreme Court repeatedly described it as an obligation not to force

employees to work through breaks. [Citation.]" (Brown v. Federal Express Corp.

(C.D.Cai. 2008) 249 F.R~D. 580, 585, fn. omitted.)

Consistent with the purpose of requiring employers to provide employees with

meal breaks, theLaborCode and the IWC use mandatory language (e.g., Lab. Code, §

, 226.7, subd. (a) ["No employer shall require any employee to work during anymeal or

rest period ..."D precluding employers from pressuring employees to skip breaks;

declining to schedule breaks, or establishing a work environment discouraging or

preventing employees from taking such breaks. The mandatory language does not

mean employers must ensUre employees take meal breaks. Our interpretation ofthe

meal break requirement is supported by the definition of the word "provide" as used in

Labor Code sections 226.7, subdivision (b), and 512, subdivision (a), as well as, California Code of Regulations, title 8, section 11050, subdivisions 11 and 12. (See

fn. 4 & fn. 5, ante.) "Provide" means ''to supply or make available." (Webster's

Ninth Collegiate Dictionary (1986) p. 948.)

Hernandez relies on Cicairos'v. Summit Logistics, Inc., supra, 133 Cal.AppAth

949 (Cicairos) to argue employers must ensure meal breaks are 'taken. In Cicairos, an

11

•

•

•

•

•

•

•

•

•

.'•

.. employer did not schedule meal breaks for its truck driver employees, established a

system whereby drivers were pressured to make a certain number of trips during a

work day, had a monitoring system to track drivers, and did not include a code for rest

stops in its computer system. (Id. at p. 962.) These and other aspects of the work

environment effectively deprived drivers of an opportunity to take breaks. In

reversing a summary judgment granted to the employer with regard to meal break

claims, the appellate court relied upon a January 28,·2002 opinion letter from the. .

Division ofLabor Standards Enforcement (DLSE). Cicairos stated, "Under the facts .

presented ... the [employer's] obligation to provide the plaintiffs with an adequate

meal period· is not satisfied by assuming that the meal periods were taken, because

employers have 'an affirmative obligation to ensure that workers are actually relieved

ofall duty.' (Dept. of Industrial Relations, DLSE, Opinion Letter No. 2002.01.28

.. (Jan. 28, 2002) p. 1.)" (Cicairos, supra, at pp: 962-963.) With regard to rest breaks,

Cicairos held "the [employer] could ... be liable if the plaintiffs did not take their full

10-minute rest breaks because, as a practical matter, the deferidant did not permit the .

plaintiffs to take their rest breaks. (See Cal. Code Regs., tit. 8, § 11090,subd. 12(A)

[employer must authorize andpermit rest period].). .. [m The defendant has not .

proven it supplied the plaintiffs with their rest periods; therefore, suinmary judgment

was improper."· (Cicairos, supra, at p. 963.)6

Cicairos does not assist Hernandez. The DLSE has withdrawn the opinion

letter upon which Cicairosbased its analysis. (Dept. of Industrial Relations, DLSE,

•Opinion Letter (October 23,2008) ["Court Rulings on Meal Periods"].) -(2AA263)­

In doing so, the Division stated: "Taken together, the language of the statute and the

regulation, and the cases interpreting them demonstrates c;:ompelling support for the. .

position that employers must provide meal periods to eniployeesbut do not have an·

. additional obligation to .ensure that such meal periods are actually taken." (Dept. of ..

6 Cicairos concerned·Wage Order 9-2001 (Cal. Code Regs., tit. 8; § 11090).covering workers in the transportation industry, but the pertinent wage orderprovisions are materially similar..

12

•

•

•

•

•

•

e.

•

•

. .

Industrial Relations, DLSE, Opinion.Letter (October 23,2008) at p. 2.} Further;

Cicairos's conclusion relating to meal breaks did not depend upon an "ensure'"

standard. Rather, the facts in Cicairos were such that the employer's business

practices effectively deprived employees of the ability to take meal breaks. (Dept. of

Industrial Relations, DLSE, Opinion Letter (October 23,2008) at p. 5.)

.Hernandez's position also is not practical. "Requiring enforcement of meal

breaks would place an undue burden on employers whose employees are numerous or

who ... do not appear to remain in contact with the employer during the day. See

White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088-89 (N.D.Cal.2007). It would

also create perverse incentives, encouraging employees to violate company meal break

. policy in order to receive extra compensation under California wage and hour laws.

[Citation.]" (Brown v. Federal Express Corp., supra, 249 F.R.D. at p. 585.) Thus, .

. although the Supreme Court has yet to decide the issue, we hold that the trial court

used the correct legal analysis with regard to meal breaks.

b. ". The trial court was not foreclosed from: addressing thelegal issue.-

Citing Linder, supra, 23 Cal.4th 439, Hernandez argues the trial court should

not have addressed whether employers must provide meal breaks rather than ensure

they be taken because a certification issue is "essentially a procedural one that.does not

.. ask whether an action is legallyor factually meritorious." (Id. at pp. 439-440; accord,

Sav-OnDrug Stores, supra, 34 Cal.4th at p. 326.). . . .

However, neither Linder nor other Supreme Court authority forecloses courts. . '. -

from examining a legal issue in addressing certification. "[Linder] said only that a

plaintiff need not establish a likelihood of success on the merits in order to obtain class. .

certification. It does not follow that, in determining whether the criteria ofCode of

Civil Procedure section 382 are met, a trial9r appellate court is precluded from. . .

considering how various claims and defenses relate and may affect the course of the

"litigation, considerations that may overlap the case's merits. [Citation.] ... Linder . ..

expressly recognized that 'whether the claims·or defenses of the representative

plaintiffs are typical ofClass claims or defenses' was an issue that might necessarily be

13

•

•

•

••

•

•

•

•

•

•

intertwined with the merits of the case, but which a court considering certification·

necessarily could and should consider. [Citations.]" (Fireside Bank, supra, 40 Ca1.4th

at pp. 1091-1092; Washington Mutual Bank v. Superior Court (2001) 24 Ca1.4th 906

[choice of law issue had to be resolved before certification of nationwide class was

addressed as it was key to predominance and manageability1; Walshv. IKON Office

.Solutions, Inc. (2007) 148 Cal.AppAth 1440, 1450 [affirmative defenses may be .

·considered to defeat certification]; contra, Medrazo v. Honda o/North Hollywood

(2008) 166 Cal.AppAth 89,97-98.)

Hernandez also points to Jaimez v. Daiohs USA, Inc. (2010).181 Cal.AppAth

1286 (Jaimez) to support his argulllent that the trial court should not have examined

the proyide versus ensure legal issue. In Jaimez, Division One of thisdistrict reversed

the denial of class certification in a case that, like Cicairos, involved employees who

.... were on the road most .of the day or at customers' places of business: Jaimez found it

unnecessary to decide whether employers need only "provide" meal breaks and not

· ensure employees take them. (Jaimez, supra,at pp. 1303-1304.) The declarations

•.. established there were predominant common factual issues whether the employees

missed meal breaks because of the e~ployer's practice ofdesignating delivery

schedules and r()utes that made it impossible for employees to both take their breaks

andcomplete their deliveries on time. (Id. atpp. 1300-1301.) Before 2006, the.

·employer had a practice of deducting 30 minutes per shift for meal breaks even ifno

· break was taken, and after 2006, employees had to sign a manifest indicating they took· - . ". . .

a meal break, regardless of whether they took the break, in order to get paid. (Id. at p..

1304.) Since the employer's practices presented. the predominant common factual

issues on the meal and rest break claims,Jaimez did not have to consider whether the

employer violated a duty to provide or to ensure breaks. Jaimez does not hold that in. . .· . . .

every wage-and-hour case, even those presenting entirelydifferent factual issues, .. . .

courts may not consider the merits of a legal issue in order to rule on class

certification. The trial court appropriately decided the threshold legal issue as it could .

·not otherwise assess' whether class treatment was warranted.

14

•

•

•

•

•

•

•

.-•

•

•

3. The trial court did not abuse its discretion in denying certification.

a. Ther~ is substantial evidence supporting the trial court's rulingt~at individual issues predominate.

The declarations and depositions of putative class members showed Chipotle

did not have a universal practice with regard to breaks. Some employees declared they

always missed meal breaks; some declared they received meal breaks, but not restI

breaks; one declared his meal and rest breaks were combined; some did not declare

they were denied meal breaks; and others declared their breaks were delayed.

Employees declared their meal breaks were interrupted with varying degrees of

frequency, as demonstrated by one employee who declared he was frequently denied

his fIrst rest break, but always denied his second break. In the 73 declarations

provided by Chipotle, employees declared they had always been provided breaks.. . '. .. .

Hernandez himself admitted that except for one occasion, managers in the Manhattan

Beach restaurantalwaysprovided him with an opportunity to take his breaks, but

managers in the Hawthorne restaurant denied him meal breaks- two or three times a

week.

The evidence before the trial court suggested that in order to prove Chipotle

-violated break laws, Hernandez would have to present an analysis restaurant-by-

-restaurant, and perhaps superirisor-by-supervisor. Given the variances in the

- declarations, Hernandez did not demonstrate a common practice or policy. (E.g., Ali v.

US.A. Cab Ltd. (2009) 176 Cal.AppAth 1333, 1350 ["When variations in proofof

harm require individualized evidence, the requisite community o{interest is missing

and class certification is improper"]; compare with Bufil v; Dollar Financial Group,

- Inc. (2008) 162 Cal.AppAth 1193 [certifIcation appropriate where there were- -

allegations employer had policy ofprohibiting certain-employees from takfug breaks].)

Even if Chipotle mana~ers directed when employees could take breaks, there was

substantial evidence that Chipotle's supervisory personnel did not unifonnly handle

breaks. The only evidence of a company-wide policy andpractice was Chipotle's

evidence that it provided employees with meal and rest breaks as required by law.

15

b.

•

•

•

•

•

•

•

•

•

The time records do not demonstrate Hernandez can proveon a classwide basis that Chipotle failed to provide employeeswith breaks.

Hernandez argues he can prove Chipotle has not provided meal and rest breaks

by using employee time records that show employees did not clock in and out for meal

and rest breaks. However, there is substantial evidence the time records may be

unreliable, because Chipotle paid employees for breaks and, thus, employees lacked an

incentive to clock in and out, and many did not do so. Chipotle instructed managers

not to- correct erroneous time records of meal and rest breaks since Chipotle paid

employees for breaks, so there was no benefit gained by such time-record corrections.

A trier of fact will have to ascertain ifChipotle employees actually missed breaks, or

simply forgot to record them, as well as the reason why employees might have missed

breaks or went back to work before completing them. In light of the size of the

proposed class, there could be thousailds ofmini-trials to address the factual issues,

supporting the trial court's conclusion that class tre~tment is not superior to individual

lawsuits. (Kenny v. Supercuts, Inc. (N.D.Cai. 2008) 252 F.R.D. 641, 646 [class

allegations that employer failed to provide meal breaks; disparity in employees' time

records showed individualiIiquiry required].f

7 Hernandez also argues Chipotlecannot rely upon the inaccuracy of its ownrecords to defeat certification because Chipotle was required to keep (iccurate recordsofallmeal breaks taken. (Cal. Code Regs., tit. 8, § 11050, subd. 7; Aguiar v. CintasCorp. No.2 (2006)-144 Cal.App.4th 121, 134-135 [employer who failed to keepaccurate records in wage and hour claim class action case had burden ofproof whereemployer .J?ermitted employees to work on many contracts and not just one at issue-andwhere required records would have permitted determination of sub.classes]; Hernandez _v. Mendoza (1988) 199 Cal.App.3d 721 [in non-class action case, burden ofproducingevidence shifted to emplpyer where employer falsified records and failed to keep -accurate records ofwork performedl) First, we doubt this argument applies to restbreak Claims, as employers are not obligated to keep records of rest breaks. (Cal. CodeRegs., tit. 8, § 11050, subd. 7.) Further, here there was noevidence Chipotle falsifiedrecords or purposefully failed to keep records. Certification ofaclass is not requiredsimply because an employer's records of meal and rest breaks are not 100 percentaccurate.-

16·

•

••

•

•

•

•

•

•

•

•

c. Hernandez's evidence does not undermine the trial court's ruling.

In the trial court, Hernandez pointed to Professor Kakigi's analysis to suggest

certification was appropriate because sampling of testimony and expert analysis would

prove the case. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 333 & fn. 6.) The trial

court correctly concluded that introducing evidence by the use of a sampling of

. employee testimony was not manageable. "It is not sufficient ... simply to mention a

. procedural tool; the party seeking class certification must explain how the procedure

will effectively manage the issues in question." (Dunbar v. Albertson's, Inc. (2006)

141 Cal.AppAth 1422, 1432.) .

Professor Kakigi did not show a sampling of testimony would simplify a·trial.

He found that 92 percent ofChip?tle's employees missed at least one meal break.. We

have already noted there are reasons to doubt whether the time records on which his

analysis was based are reliable proofof missed breaks. As the trial court noted, "What

percentage of the 92% have innocent explanations? If, for example, 75% of the 92%

have innocent explanations for the missed break, it would not be rational to allow each

side the same number of 'samples' to put forth at trial. The C~>urt must know this

percentage in order to determine how many samples to allocate to each party. A

census on the 92% of employees is required."

. Additionally, Professor Kakigi premised his conclusions on the erroneous legal

standard that Chipotle had to ensure employees took breaks. He assumed a break was

missed ifan employee clocked back in one minute early from a break, without

accounting for why that occurred. As a practical matter, employees may have .

voluntarily chosen to return to work early. There was evidence some employees

occasionally forgot to record their breaks and sometimes they recorded breaks

inaccurately. Even if the employee records showed an ·employee did not take a break

at all, the reason for that "missed" break must be ascertained,.because, for example, if

that employee willingly decided to forgo a break, there was no unlawful conduct.

Further, the professor's conclusions did not demonstrate Chipotle had a practice

ofdenying breaks. Professor Kakigi stated that 92 percent of employees missed a

17

•

•

•

•

.'•

•

•

break and all restaurants showed missed breaks. However, ,Professor Kakigi did not

demonstrate a pattern or practice of missed br.eaks, for.example, with evidence that

missed breaks occurred more frequently at certain times, in specific restaurants, during

certain seasons or shifts; nor did he offer any explanation why some employees at the '

same restaurant had different experiences.-',

d. There is substantial evidence of conflicts of interest among theputative class members.

The last reason provided by the court to deny certification was that members of

the putative class had conflicts of interests. There was substantial evidence that some

employees move 'in and out of supervisory roles with the responsibility to provide

meal and rest breaks for themselves and other employees on the shift, without a

change of title or other indicia of managerial status. Therefore, some putative class

members may accuse other putative class members ofviolating their meal and rest

period rights. The trial court did notabuse its disc!etion in concluding the likelihood

that some class members might testify against other class members demonstrated

antagonism ofso substaritial a degree as to defeat the purpose ofclass certification.

(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462,472).

DISPOSITION

'Because there is substantial evidence to support the trial court's discretionary

ruling, We affrrm the order denying certification. Chipotle is awar<:ied costs on appeal.

GRIMES,].

We Concur:

<'

"

FLIER,.ACTING P. J. ,O'CONNELL J;*" ,

•. * Judge of the Los Angeles Superior CoUJ1, assigned by the ChiefJusticepursuant to article VI, section 6 of the California Constitution. .

18•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

).

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

•

.:

•

•

•

•

ROGELIO HERNANDEZ

Plaintiff

VS.

CHIPOTLE MEXICAN GRILL, INC .

Defendant

Case No.: BC373759

COURT'S RULING ON:PLAINTIFF'S MOTION FORCLASS CERTIFICATION ANDDEFENDANT'S MOTION TO DENYCLASS CERTIFICATION

•

•

•

.eRULING ON SUBMITTED MATTER

Rogelio Hernandez vs. Chipotle Mexican Grill, Inc.Case No. BC373759Department 14, Judge Terry Green(Original Hearing Date: March 2, 2009)

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION and DEFENDANT'SMOTION TO DENY CLASS CERTIFICATION

• A. Evidentiary Objections

•

•

•

•

•

I.i

Plaintiff's objections to the Declaration of Brown at'~ 7 (p. 3:8-12), 8 (p. 3:25­9:2), 10 (p. 4:24-25), 11 (p. 5:13-15), 15 (p. 6:24-26), 17 (p. 7:21-22,7:24-26),25 (p.10:25-26), and 26(p. 11 :4-6) are sustained on grounds stated;

Defendant's objection number 8 to the Declaration ofAguilcU; number 6 to.Declaration ofAmezcua, number 9 to Declaration ofBalbuena, number 11 to Declarationof Chavez, number 7 to Declaration of Gonzalez, and numbers 7-8 to Declaration ofMunoz are sustained on grounds stated; and

All other objections are overruled.

B. Judicial Notice

Defendant's request for judicial notice of(1) Memorandum re Court Ruling onMeal Periods issued by the DLSE; (2) Ruling and Order in Tenent HeaIthcare Cases IV,Los Angeles County Superior Court, case no. JCCP 4377; and (3) Minute Order datedJune 16,2005 in Colburn v. Albertson~ Inc., Los Angeles Superior Court, case no.BC299391 are granted per Evidence Code §452(c)-(d).

C. Motion for Class Certification/Motion to Deny Class Certification

The proposed class that Plaintiff is seeking certification is defined as follows:

"All persons who are or have been employed by Chipotle at any locationin California at any time since July 3, 2003. in any hourly position other~an the four managerial positions: Restaurateur. General Manager,Apprentice, Kitchen Manager and Service Manager." .

Class certification is appropriate when "the question is one ofa common orgeneral interest, of many persons, or when parties are nwnerous and it is impracticable tobring them all before the court." Code of Civil Procedure §382. "To obtain certification,a party must establish the existence ofboth an ascertainable class and a well-definedcommunity of interest among class members. The community of interest requirement\

•

•

•

•

•

•

•

•

•

•

involves three factors: '[1] predominant questions of law or fact; [2] class representativeswith claims or defenses typical of the class; and [3] class representatives who canadequately represent the class. The party seeking certification has the burden ofestablishing the prerequisites for a class action." Linder v. Thrifty Oil Co. (2000) 23Cal.4th 429, 435.

A Plaintiff must present substantial evidence demonstrating that thesefactors have been satisfied, as "a certification ruling not supported by substantialevidence cannot stand." Lockheed Martin Corp. v. Superior Court (Carrillo)(2003) 29 CaI.4th 1096, 1106. Trial courts are afforded great discretion ingranting or denying certification, and "[a]ny valid pertinent reason stated will besufficient to uphold the order." Linder, supra, 23 CalAth at 435·36.

1. Numerosity. The class must be sufficiently numerous thatindividual joinder is impracticable. However "no set number is required as amatter of law for the maintenance of a class action." Rose v. City ofHayward(1981) 126 Cal. App. 3d 926, 934.

The putative class members consist ofover 1,500 hourly, non-exempt.crew members (excluding Managers). per the provided sampling ofclassmembers infonnation and Defendant's agent testified that it currently employeesover 3,000 hourly employees. Dec!. of Leonard at 110 (plaintiff's Exhibit 4);Depo. of Brown at 26:16-27:2 (Plaintiff's Exhibit B). Therefore the class issufficiently numerous that joinder is impractical.

2. AscertainabiIity. An ascertainable class exists after examining "(1)the class definition, (2) the size ofthe class, and (3) the means available foridentifying class members." Global Minerals & Metals Corp. v. Superior Court(National Metals, Inc.) (2003) 113 Cal. App. 4th 836, 849.

The identity of some of the class members have essentially already beendone through the sampling provided and the remaining are identifiable throughDefendant's payroll records and/or employee files. Dec!. of Dominguez at ~2.The class definition conveys sufficient meaning to enable a person to determine ifhe/she is a member of the class. Furthermore, Defendant does not appear todispute this element. Therefore, the class is ascertainable.

3. JYpicality. The named plaintiff must be a member ofthe class.Petherbridge v. Altadena Federal Savings and Loan Association (1974) 37.Cal.App.3d 193, 200. The test of typicality is "whether other members have the

:: ~ same or similar injury, whether the action is based on conduct which is not uniqueJt to the named plaintiffs, and whether other class members have been injured by the;,; same cowse of conduct." Seastrom v. Neways. Inc. (2007) 149 Cal. App. 4th

. iJ 1496, 1502. However, the class representative's interests need not be identical tothose ofclass members, only similarly situated. Classen v. Weller (1983) 145Cal.App.3d 27,46.

•

•

•

•

•

•

•

•

• iI ":;~,

.:L~:~

h'1

•

•

Plaintiff is a member of the class he seeks to represent as Defendant's agent,Brown, attests that Plaintiff Hernandez was employed as a crew member in two differentChipotle restaurants. Decl. of Brown at ~25. Furthermore, Plaintiff testified that onoccasions he missed his meal and rest breaks and on other occaSions his meal and restbreaks were interrupted and shortened with no make-up break provided, which his timecard report verifies. Depo. of Hemandez at 415:23-417:1,421:22-422:16,437:11-15,451: 19-452:2, 468: 1-4 (plaintiff's Exhibit D); Plaintiff's Exhibit E. Additionally,putative" class members attest to either missing their breaks (meals and/or rest) orreceiving shorten breaks (i.e. interrupted) or breaks were delayed. Decls. of Mendoza at"8-11, R. Gonzalez at "5-6, and Y. Gonzalez at ~'1Q-13 (plaintiff's Exhibits 1-3,"respectively); Deels. ofAguilar at mJ5-7, 11-13, Amezcua at ~~7-8, Balbuena at m6-8, 12,Barnaca at ~~5-7, Chavez at ~~8-12, 14-15, N. Gonzalez at ~7-8, R. Gonzalez at ~7, Laraat ~~6-8, 12, Leon at ,"7-11, Munoz at ~~7-9, Roberts at ~~6-8, 11, Romero at mJ8-11,Scales at ~'5-8, 10 and Valasco at ~~7-11 (Plaintiff's Supp!. Exhibits 1-15, respectively). "

Although Defendant presents evidenceofa policy, which on its face appears tocomply with California meal and rest break Labor Code provisions, and declarations ofputative class members and managers who attest to meal and rest breaks being provided,authorized and permitted, the evidence presented by Plaintiff is sufficient to demonstratethat he shares in similar claims with the class. Plaintiff's Exhibit A; Decl. of Pineda at~~8, 10, 12-13 (Defendant's Appendix Exhibit 1); Class Member Declarants at ~3-6(Defendant's Appendix Exhibits 2-57); Manager Declarants at ~3-5 (Defendant'sAppendix Exhibits 58-73).

Although Plaintiff does not seek certification of his denied wages (off the clock,overtime) and failure to maintain records, the Court needs to determine if certification isappropriate as to these claims in that Defendant brought a. proper motion seeking to denycertification of those claims. The California Supreme Court has stated that a defendantcan bring a motion for determination of the appropriateness of a case as a class action.City ofSan. Jose \I. Superior Court (1974) 12 Ca1.3d 447,453-54. Defendant presentsevidence from putative class members who attest that they never worked offthe clock.Decl. of Pineda at ~4 (Defendant?s Appendix Exhibit 1); Class Member Declarants at ~8(Defendant's Appendix Exhibits 2-57). Yet, in contrast, Plaintiff testified to ~ least on afew occasions he worked off the clock with his supervisor aware ofsuch off the clockwork [Depo. of Hemandez at 40:9-50:21 (Defendant's Exhibit E)] and presentsdeclarations from former and current putative class members who attest to occasionallyworking off the clock. Deels. ofAguilar at ~4, N. Gonzalez at ~4, Romero at ~4, andValasco at'13 (plaintiff's Suppl. Exhibits 1, 7, 13 and 15, respectively). As with themeal arid rest break claims, the evidence presented is sufficient to establish that Plaintiffand class members share in similar claims for offthe clock work.

4. Adequacy. The class representative must act as a zealous fiduciary (LaSala \I. American Servings & Loan Association (1971) 5 Cal.3d 864, 871); raise the claims"reasonably expected to be raised by the members of the class" (City ofSan Jose v.Superior Court (1974) 12 Cal.3d 447,464); and no conflicts exists that goes to very

----e

--,

I

----I

subject matter of the litigation (J.P. Morgan & Co., Inc. v. Superior Court (HeliotropeGeneral, Inc.) (2003) 113 Cal.App.4th 195,212; Richmondv. Dart Industries, Inc. (1981)29 Ca1.3d 462,470). Class Counsel must be qualified, experienced and generally able toconduct the proposed litigation. McGhee v. Bank ofAmerica (1976) 60 Cal.App.3d 442,450; Miller v. Woods (1983) 148 Cal.App.3d 862,874. "

Plaintiff Hernandez seems to be an adequate class representative. Plaintiffassumes a fiduciary responsibility when he filed the within litigation to act on behalf ofthe absent class members. Earley v. Superior Court (2000) 79 Cal. App. 4th 1420, 1434;see also La Sala v. American SaVings & Loan Association (1971) 5 Cal.3d 864, 871.Although Plaintiff sat for his deposition and is no real indication that he will not act in thebest interest of the class, he, oil the other hand, provided no declaration in support of hiswithin motion, which may indicate his lack of interest and/or understanding of his role asa Class Representative. .

The declarations of attorney Finberg and Matern sufficiently set forth theirqualifications, experience and skill so as to fmd that they are adequate Class Counsel.

4. Commonality. "The ultimate question in every [purported class action] is •whether, given an ascertainable class, the issues which may be jointly tried, whencompared with those requiring separate adjudication, are so numerous or substantial thatthe maintenance of a class action would be advantageous to the judicial process and tothe litigants:' Brown v. The Regents ofthe University ofCalifornia (1984) 151Cal.App.3d 982,989.

a. Meal and Rest Breaks (1 st, 2nd~ 5th & 6th causes ofactions). LaborCode §226.7 states that an employer "shall not require any employee to work during anymeal or rest period mandated by an applicable order ofthe Industrial WelfareCommission." All wage orders (§12) contain the language that "every employer shallauthorize and permit all employees to take rest periods." And Labor Code §512 and allapplicable wage orders (§11) states that an employer shall not employ a person for morethan 5 hours without a 30-minute meal period, unless works less than 6 hours, then themeal can be mutually waived. .

The Courts and litigants are generally in agreement that rest breaks onlyneed to be authorized and permitted, which means made available. See Cicairos"v.Summit Logistics, Inc. (2005) 133 Cal. App. 4th 949,963; White v. Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1086; Brown v. Federal Express Corporation (C.D. Cal.2008) 249 F.R.D. 580,584.

In contrast to the·rest break provisions, the meal break provisions are indispute. Currently, the California Supreme Court is reviewing two California appellatecases that held that the standards under Labor Code §§226.7, 512 and Wage Orders wasprovide. The only California appellate authority as to meal breaks held that an employer"obligation W provide [employees] with an adequate meal period is not satisfied byassuining that the meal periods were taken, because employers have ~an affirmative

•

•

•

•

.:

.• I

i1

•

•

•

obligation to ensure that workers are actually relieved of all duty' (Dept. of IndustrialRelations, DLSE, Opinion Letter No. 2002.01.28 (Jan. 28, 2002) p.l)." Cicairos, supra,133 Cal. App. 4th at 962-63. The evidence in Cicairos was that despite under thecollective bargaining agreement to schedule for meals, the employer did not schedulemeals, did not monitor compliance with taking meals, and pressured its drivers to makemore than one trip so would be harder to stop for lunch. Cicairos, supra, 133 Cal. App.4th at 955-56,962-63. It was under those facts that the Court found defendant failed toestablish it provided the plaintiffs with their required meal period. Id at 963 (emphasisadded).,

However, several District Courts in interpreting California meal breaklaws have held that the standard is not ensure meal breaks are taken but that an employer·provides its employees with the opportunity to take hislher 30-minute free ofduty mealperiod. Brown v. Federal Express Corporation (C.D. Cal. 2008) 249 F.R.D. 580, 584-85("It is an employer's obligation to ensure that its employees are free from its control forthirty minutes, not to ensure that the employees do any particular thing during thattime"); Kenny v. Supercuts, Inc. (N.D. 2008) 252 F.R.D. 641,645 ("The structure of thestatute and the Wage Order demonstrate that the waiver applies to the employer'sobligation to 'provide' a meal break, not to the employee's decision to take a mealbreak."); White vs. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080, 1088-89("employee must show that he was forced to forego his meal breaks as opposed to merelyshowing that he did not take them regardless of the reason").

The Brown, Kenny, and White Courts held that Cicairos should be readunder its facts and more importantly, that the language regarding an affumativeobligation is consistent with their holding. Brown, supra, 249 F.R.D. at 586; Kenny,supra, 252 F.R.D. at 645-46; White, supra, 497 F.Supp.2d at 1089. The combination ofCicairos defendants knowing its employees were skipping meals with no steps to addressthe situation with the management policies meant that the defendant was effectivelydepriving its employees of their provided breaks. Brown, supra, 249 F.R.D. at 586;Kenny, supra, 252 F.R.D. at 645-46; White, supra, 497 F.Supp.2d at 1089.

Although the California Supreme Court is currently taking up this matter onreview, it is likely to hold that the law, as stated under Cicairos, Brown, Kenny and White,is that an employer must ensure that employees are provided with such meal and restbreaks and that the employer does not do anything, constructively (impede) or overtly(demand), to prevent a meal from being taken. Yet, the employer is not required toensure that its employees actually take their meal or rest breaks.

Here, although there are common questions regarding whether Defendant policy:: f and practice was to provide, authorize and permit meal and rest breaks, whether crew.:1. members missed or received shorten meal and rest breaks and whether such constituted.:~_~) an unfair business practice, these questions do not predominate.,c~

Plaintiff argues that the time records can establish ifand when a meal or rest·break was taken in that Defendant's policy is that the crew members are to clock in and

•

•

e

e

•

•

•

•

•

e i

e

out for hislher meal and rest breaks. However, as Defendant jJQints out, these recordscannot establish why a meal or rest break were missed or shortened. Under the standardsespoused above, in order to establish that the Defendant is liable, Plaintiffwill need toestablish that Defendant constructively or overtly prevented an employee from taking hisor her meal and rest breaks. Furthermore, as stated above under Typicality, Defendantmaintains a written meal and rest break policy that on its face appears to comply withCalifornia Labor Code §§226.7 and 512. . . .

Additionally, the evidence is that Defendant pays its employees for all hourswhile on shift, Le. meal and rest breaks are paid time. Thus, the employees do not havean incentive to clock in and out for their meal and rest breaks. Although Plaintiffpresentsevidence that Defendant had a policy that the Managers could correct time keepingmistakes, the evidence was also that the Managers were instructed to not correct forfailures to clock in and out for breaks. Plaintiff's Exhibit A; Decl. of Brown at 1[28;Managers Suppl. Declarants at ~~4-5 (Defendant's Appendix Exhibits 74~88. Plus, thereis no evidence that the Managers ever did in fact make,corrections for a crew member'sfailure to clock in and out on a meal or rest break.

As the Court concluded in Kimoto, et al v. McDonald's Corp, 2008 U.S.Lexis 86203:

"To support her claims, Plaintiffhas submitted a sampling of time punchmeal and rest break data for McDonald's non-exempt California restaurantemployees from March 2006 through March 1, 2008, and time punch summaryreports of various employees... the Court finds that individual questions would stillpredominate. The Court cannot infer from the summary reports ofvariousemployees a company-wide policy of not authorizing meal or rest periods. First,there is no financial incentive for an employee. to clock in and out for a ten-minuterest period, since that employee will get paid regardless. Thus, without otherevidence, the Court cannot assume that the employees accurately recorded thetiming oftheir breaks. This is especially true in light of Defendant's evidence ­declarations by store managers - that often an employee will take a rest periodwithout punching in and out, despite being instructed to do so... and that often,employees fail to clock out for meal periods when taken...Second, these timerecords actually demonstrate the individual nature of the inquiry. Some of theemployees clocked out for their full 30 minute meal periods or ten-minute breaksmost of the time, and some appear to have clocked out only part of the time.Moreover, Defendant has submitted evidence showing that authorizations to takerest periods and meal breaks vary from manager to manager, and also vary fromstore to store." Id.

::f

~t As in Brown, Kenny, White and Kimoto, oil Supras, the Court and parties here will.. ~ be required to ascertain from each class member whose time records show that a meal or

rest break was missed or shortened (i) whether the missing noted break was because he/sheactually missed hislher break or simply forget to clock in and out; (ii) the reason why

•

•

•

•

.'I•

•

•

!.'

•

he/she missed hislher provided, authorized and permitted meal and rest breaks; and (iii) thereason why he/she returned early from hislher meal or rest break. As these individualizedquestions will need to be answered to determine Defendant Chipotle's liability, and as theypredominate the issues herein, commonality is defeated.

b. Unpaid Overtime, Maintain Require Records (3 rd_4tb causes ofactions). Although there are common questions of whether the class members' workedoff the clock and whether Defendant was aware of the said off the clock work, as Plaintiffdoes not seek certification of this issue, he presents no evidence or argument how thosecommon questions could be proven in a common, class-wide basis. The determination ofthe overtime/off the clock claim will require the Court to individually inquire with eachclass member whether he/she worked off the clock, whether such was at the direction ofhislher supervisor and/or whether the Defendant through its agents were aware that theclass member was working off the clock. These individual questions do not even includethe individual questions that would be required to detennine any damages owed to theclass members. Additionally, as the maintain records claim is essentially derivative ofthe .overtime/off the clock claim, individual inquiry would ~e necessary to determine if theclass member worked off the clock so that those hours would then not have been properlyrecorded. Thus, commonality fails ,as to these claims.

5. Superiority. "The superiority criterion is manifest in the determinationthat a class action brought under Code of Civil Procedure 382 would produce 'substantialbenefits' to the litigants and the judicial system.". Schneider v. Vennard (1986) 183 Cal..App. 3d 1340, 1347.

After considering both the benefits that a class action would yield, as well as thepotential unfairness to the Oefendants, which might result from a litigation of theunderlying claims through aggregate procedures rather than through separate trials, theCourt finds that class adjudication of the class claims provide no substantial benefit to theCourt or parties in that individual inquiry will be required to determine if Defendant is .liable for denying proper meal and rest breaks to each of its thousands ofemployees. .Furthermore, the adjudication of these individual issues' renders class-wide adjudicationunmanageable.

At oral argument, Plaintiff argued that the Court and parties could manage theindividual inquiry through use of sampling testimony and expert analysis. In that regard,Plaintiff filed a supplemental expert analysis that stated the 92% of the employees missedone meal break and 88% had at least one missed rest break at some point in theiremployment. Dec!. of Kakigi at ~3. CoUnsel for Plaintiff admitted that Mr Kakigiassumed in his analysis that the law requires employers to ensure breaks are taken, so the

;; f recorded absence in the employer's records ofa complete break is proof of violation..:L However, as this Court has indicated, this is not the standard. The fact that the time:,:~

records indicates a meal or rest break was missed does not in of itself establish that~i~ Defendant failed to provide, authorize or permit the employee from taking hislher meal or

rest break.

•

•

•

•

e

•

•

•

•

•

•

Furthermore, the sampling of those 92% and 8S% employees does not appear tobe manageable. Ifa sampling of testimony is provided at trial, then the question arises ofhow many from each side? What percentage of the 92% have innocent explanations? If,for example, 75% of the 92% have innocent explanations for the missed break, it wouldnot be rational to allow each side the same number of"samples" to put forth at trial. TheCourt must know this percentage in order to determine how many samples to allocate toeach party. A census on the 92% ofemployees is required. If sampling testimony isprovided, then how many rebuttable witnesses does each side get to present? Plaintifffails to present a clear outline ofhow the Court and parties will be able to manage thevarious individual questions that will be required to be answered prior to findingDefendant liable; therefore, class-wide litigation here is unmanageable.

Another independent reason class treatment here is not superior stems from theconflicts of interest that appear within the class.

Managers and leads during a shift have the responsibility to provide, authorizeand/orpennit the crew members the ability to take hislher meal and rest breaks.Plaintiff's Exhibit A; Manager Declarants at 14 (Defendant's Appendix Exhibits 58-73).The oral arguments and presented evidence is that some of the class members during theclass period have moved in and out Of managers positions. Additionally, some oftheputative class members during various shifts would have acted as leads. As such,Plaintiff claims will pit putative class members against each other in order to establishthat Defendant failed to provide, authorize and permit meal and rest breaks. The courtcan deny certification if the antagonism is ofsuch a substantial degree that the purposefor class certification would be defeated. Richmond v. Dart Industries, Inc. (1981) 29Ca1.3d 462, 472. Such is the case here.

Because individual questions predominate, and also because of the inherentconflict of interest, class treatment in this case is neither superior or desireable.

Conclusion

Ultimately, the Court must use its discretion to ascertain ifclass treatment is thesuperior manner with which to proceed. This Court is well aware that, in wage and hourcases, appellate courts have shown a preference for class treatment. Ghazaryan v. Diva.Limousine, Ltd 169 CA4th 1524, 1538, Prince v. CIS Transportaton, Inc., 118 CA4th

1320,1328. This Court certainly agrees, and routinely certifies classes in wage and hourcases. Should the Supreme Court decide that the applicable standard for missed meal andrest breaks is the "ensure~' standard, this preference for class treatment will apply equally .to those types of cases, also.

~f

-1t .This Court believes, however, that the proper standard is "provide and do not", impede", and that the Supreme Court will so decide. Should the Supreme Court so!i~ decide, it is difficult to see how these missed meal and rest break cases can proceed as

class actions, as individual questions will (almost) always predominate.

•

•

•

•

Were this to go to trial as a class action under the "provide" standard, what wouldthe trial look like? Each class member must be contacted to determine if the break wasprovided, and ifmissed or cut short, whether it was voluntary on the part of theemployee, or prevented or impeded by the employer. Should the employee in anyindividual case charge that it was impeded or not provided, then the employer would befree to dispute this contention with more witnesses. For an employer the size ofDefendant, this could potentially result in several hundred or thousands of mini-trials,and defeat totally the purpose of handling the case as a class.

For these reasons, this court fully supports and adopts the reasoning ofthe FederalDistrict Courts in the cases cited herein that find class treatment, in cases analogous tothis one, inappropriate.

Motion for Class Certification is denied, Motion to Deny Class Certification isgranted.

•

•

•

•

•

•

•

. \