Filed 12/4/19 Huang v. Twitter, Inc. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

TINA HUANG,

Plaintiff and Appellant,

v.

TWITTER, INC.,

Defendant and Respondent.

A155155

(San Francisco County

Super. Ct. No. CGC-15-544813)

Plaintiff Tina Huang filed a putative class action complaint against her former employer, Twitter, Inc. (Twitter or the company), alleging a gender discrimination claim. The trial court denied plaintiff’s class certification motion. As relevant here, the court concluded plaintiff failed to satisfy the commonality and typicality requirements.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Twitter, Inc. (Twitter, or the company) is an online news and social networking service. Plaintiff began working at Twitter in October 2009. At that time, the company had approximately 130 employees, and few formal job titles for software engineers. In the next several years, the number of employees expanded to almost 3,000. As the company grew, it created formal titles for software engineers (SWE). It also began grouping SWEs into corporate divisions, called “pillars,” managed by a vice president or senior director. Each pillar focuses on a service or product. The number of SWEs within each pillar, and the number of pillars, changed over time.

In 2012, Twitter created a “Software Engineering Technical Ladder” (technical ladder or ladder) which assigned each SWE a job title and identified job expectations. About a year later, the company modified the ladder to delineate eight job levels and to describe the skills required for a promotion. The levels were: SWE I (level 1); SWE II (level 2); senior SWE (level 3); staff SWE (level 4); senior staff SWE (level 5); principal SWE (level 6); distinguished SWE (level 7); and fellow SWE (level 8). Between 2012 and 2018, only one employee held the level 7 role. No employee held the level 8 role.

The promotion process—and the role managers played in that process—changed as the company grew. Before 2013, the promotion process was informal: promotions were typically decided during manager meetings. In 2013, however, Twitter added structure, establishing timing for promotion cycles and requiring managers to prepare promotion packets with designated information for employees seeking promotions. The process for evaluating promotion packets varied depending on the promotion level sought.

In 2014, Twitter changed the promotion process significantly. Among other changes, Twitter allowed employees to select whether they desired a promotion, and required them to collect information for promotion packets. The company also established two factors to assess promotion eligibility: “ ‘Impact’ and ‘How.’ ” “Impact” focused on the employee’s contribution to Twitter’s priorities; “How” considered the quality of the employee’s work, and whether it added value to the company. While Twitter provided guidance, it gave managers discretion to apply the factors in making promotion decisions.

In 2015, the promotion process changed again. This iteration required promotions to certain levels to be decided by a promotion committee comprised of engineers from within the employee’s pillar. Twitter also discontinued set promotion cycles and began authorizing promotions on an ongoing basis. Finally, the company shifted the burden for promotion packet preparation back to managers, and changed how promotions to certain levels were evaluated. The promotion process evolved again in 2016.

Plaintiff’s Work at Twitter

Plaintiff began working at Twitter in October 2009 as a SWE. When Twitter instituted the technical ladder in 2012, plaintiff was assigned the title of senior SWE (level 3). She was later promoted to staff SWE (level 4). Plaintiff’s manager supported her promotion. In 2013, plaintiff’s manager prepared a promotion packet for senior staff SWE (level 5). In early 2014, the promotion committee met to discuss the 12 candidates for level 5 promotions. Of the candidates, plaintiff was the only woman. The committee promoted seven candidates. It declined to promote plaintiff based on concerns about her personality and the quality of her coding. Plaintiff resigned in June 2014.

Plaintiff’s Complaint

Plaintiff filed a complaint against Twitter, alleging a claim on behalf of herself and a putative class of female SWEs for gender discrimination in violation of the California Fair Employment & Housing Act (Gov. Code, § 12940). The operative complaint alleged Twitter discriminated against female employees on the technical ladder by failing to promote them to engineering leadership positions. According to the complaint, the company had no formal job postings or job application procedures, and managers had “complete discretion” over whether SWEs were nominated or considered for promotions. Plaintiff alleged promotion decisions were “tainted with conscious or unconscious prejudices and gender-based stereotypes” and, as a result, few female employees advanced “to senior and leadership positions.”

Class Certification Motion

Plaintiff moved to certify a class of approximately 135 SWEs on the

technical ladder based on a disparate impact theory, e.g., that “regardless of motive,

a facially neutral employer practice . . . bearing no manifest relationship to job requirements, . . . had a disproportionate adverse effect on members of the protected class.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20.) Regarding commonality, plaintiff argued the proposed class comprised a distinct group subject

to a common promotion policy. According to plaintiff, managers acted as gatekeepers

by selecting employees for promotions. Plaintiff acknowledged the promotion process was based on subjective criteria, but urged the court to find managers implemented a “ ‘common mode of exercising discretion’ ” that disfavored women under Wal–Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338 (Dukes), where the United States Supreme Court held a corporate policy that gave supervisors discretion over employment matters did not satisfy the commonality requirement in a Civil Rights Act of 1964 title VII (Title VII) disparate impact gender discrimination case. (Dukes, at pp. 355, 356.)

Next, plaintiff argued her claim was typical of the class because she, a SWE during the class period, was denied a promotion under the challenged promotion criteria. Plaintiff also contended a class action was the superior method for resolving the case because Twitter’s promotion practices applied uniformly to class members and, as a result, a class action would enable the court to resolve common questions about Twitter’s promotion system in one trial.

In her declaration, plaintiff averred getting promoted was “difficult” because managers and engineering leadership “were the gatekeepers. Unless you got a ‘tap

on the shoulder’ from the manager, there was no realistic way you could even get a promotion packet to the promotion committee, let alone be approved.” According to plaintiff, Twitter’s promotion process was obscure: even after Twitter implemented

the technical ladder, she was not “fully clear on what it would take for [her] to advance” at the company. Plaintiff believed Twitter’s failure to promote her was a result of “the ‘boy’s club’ nature of management,” and an example of “systemic bias against women . . . inherent in Twitter’s promotion system specifically, and its culture generally.”

Several female SWEs offered supporting declarations. Muffy Barkocy averred her male colleagues were encouraged to seek promotions, while she was not. According to Barkocy, the promotion process was strange, because managers determined whether candidates “could apply for a promotion.” Barkocy felt Twitter’s “ ‘brogrammer’ ” culture adversely affected women and that Twitter “was not a good place” for women to work. Sarah Brown echoed these sentiments: she averred women at the company had a “harder time” than men. Brown declined to pursue a promotion because she believed her manager lacked the “political pull to ensure [her] promotion packet would be adequately evaluated.”

A third woman averred she had more software development experience than other employees in her position. While she worked at the company, no one explained the promotion process to her. A fourth woman received a promotion, but described the promotion process as a “moving target.” She felt women were treated differently than men; she left the company because she “had exhausted her advancement opportunities.” Her manager praised her work, but lacked “the power or support of the senior leadership to recommend [her] for a promotion.”

Plaintiff’s economist prepared a report analyzing promotions to advanced SWE levels. The economist evaluated data over a four-year period and concluded, among other things, that women SWEs were promoted less frequently than men, particularly to senior positions on the technical ladder. Plaintiff offered deposition testimony from Julie Drake, the former human resources business partner for engineering. Drake could not identify a single standard objective element used in promotion decisions; she noted the company had a promotion procedure but not everyone followed it. Plaintiff also relied on written promotion documents in effect for a portion of the class period showing managers completed promotion proposals.

Opposition

Twitter argued plaintiff failed to establish commonality because managers exercised discretion over each proposed class member’s promotion and, as a result, individualized issues predominated over common questions. It also contended plaintiff was not typical of the class, and that class certification was not a superior method of adjudication.

Twitter offered declarations from several female SWEs. Yao Yue, a senior staff SWE, described her pursuit of promotions to levels 3, 4, and 5. Another SWE, Jillian Crossley, had a different experience when she was promoted from level 1 to levels 2 and 3. The company also offered declarations from several female managers who described the criteria they considered when evaluating promotion candidates. These declarations suggested there was no rigid protocol for determining whether a SWE should be promoted. As one manager observed, “demonstrating impact is different for every team.” Twitter also relied on an extensive declaration from Julie Drake, who described the evolution of Twitter’s promotion practices for SWEs and attached documents pertaining to promotion decisions. Drake averred Twitter “provided guidance on evaluating ‘Impact’ and ‘How’ through . . . promotion policies and guidelines . . . but delegated discretion to individual managers on how to assess these criteria.” Finally, Twitter submitted an expert report finding no significant disparity in promotions between men and women at the company.

Order Denying Class Certification Motion

The court denied the motion. Applying Dukes, supra, 564 U.S. 338, the court determined plaintiff failed to establish commonality because Twitter did not have a uniform system of selecting and assessing candidates for promotion during the class period. The court found the “Impact” and “How” criteria were “highly-subjective” guidelines for managers’ exercise of discretion, not—as plaintiff suggested—a common mode of discretion. Next, the court concluded plaintiff’s claim was not typical of the class because plaintiff’s managers supported her promotions. Finally, the court determined plaintiff failed to demonstrate a class action was the superior device for adjudicating the claim. As it explained, “numerous individual factual inquires would have to be undertaken regarding, for example, whether or not individual managers acted as ‘gatekeepers’ into the promotion process [and] how they applied the ‘Impact’ and ‘How’ criteria, if at all.”

DISCUSSION

Under California law, “ ‘[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.’ [Citation.] ‘The community of interest requirement involves 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.” ’ ” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 968 (Noel).)

Our review of a class certification order “is ‘narrowly circumscribed.’ [Citation.] ‘ “The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion . . . . A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.” ’ ” (Noel v. Thrifty Payless, Inc., supra, 7 Cal.5th at pp. 967–968.) “In reviewing an order denying class certification, we consider only the reasons given by the trial court for the denial, and ignore any other grounds that might support denial.” (Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1447.)

I.

Plaintiff Has Not Established the Court Applied an

Incorrect Legal Standard

In her opening brief, plaintiff argues the court erroneously relied on Dukes, supra, 564 U.S. 338. There, plaintiffs brought a Title VII disparate impact gender discrimination lawsuit against Wal-Mart and sought to certify a class of current and former employees. (Dukes, at p. 345.) Plaintiffs alleged local managers exercised discretion over pay and promotions disproportionately in favor of men, which had an unlawful disparate impact on female employees. (Id. at pp. 344–345.) The United States Supreme Court determined plaintiffs failed to establish commonality. (Id. at p. 356.)

According to Dukes, a policy of giving managers discretion over employment matters could form the basis of a Title VII disparate impact claim, but that possibility did “not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common.” (Dukes, supra, 564 U.S at p. 355.) Without showing managers used “a common mode of exercising discretion that pervades the entire company,” Dukes held the party seeking class certification could not show the Title VII claims “will in fact depend on the answers to common questions.” (Dukes, at p. 356.) Dukes noted that to establish commonality in a case based on subjective decisionmaking, a plaintiff must present “ ‘[s]ignificant proof that an employer operated under a general policy of discrimination.’ ” (Id. at p. 353.) As the court observed: “Without some glue holding the alleged reasons for all [promotion] decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” (Id. at p. 352.)

Plaintiff’s complaint regarding Dukes is barred by the invited error doctrine, which “applies where a party, for tactical reasons, persuades the trial court to follow a particular procedure.” (In re Jamie R. (2001) 90 Cal.App.4th 766, 772.) When a party induces the commission of error, “ ‘[s]he is estopped from asserting it as a ground for reversal’ on appeal.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) In her class certification motion, plaintiff relied on Dukes and argued she could satisfy the criteria articulated in that case. Because plaintiff invited the court to use Dukes, she cannot complain that the court accepted her invitation. Plaintiff’s argument fails for an additional reason: she does not respond to Twitter’s invited error claim in her reply brief, nor contend the court erred by relying on Dukes. Thus, “we assume [she] abandoned the issue.” (The Police Retirement System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 346, fn. 3.)

The argument also fails on the merits. Plaintiff acknowledges Dukes may be persuasive. Appellate courts have looked to Dukes for guidance and, where appropriate, have distinguished it. (See Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1128; Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 937.) Plaintiff’s disagreement with the result reached by the court after it considered Dukes does not demonstrate the court applied the wrong legal standard.

Nor are we persuaded by the cursory argument in plaintiff’s opening brief that the court erred by relying on Dukes because California and federal class action procedures differ. California courts have noted the similarity between Code of Civil Procedure section 382 and the “federal rules” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 35) and have considered rule 23 of the Federal Rules of Civil Procedure for “guidance in class certification matters.” (Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 146, fn. 2.)

II.

Plaintiff Failed to Demonstrate Common Issues Predominate

As noted above, a plaintiff in a disparate impact gender discrimination case must show a facially neutral practice or policy had a disproportionate adverse effect on a protected class. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354, fn. 20.) An employer practice or policy is essential—without one, there can be “no common method to prove classwide liability because each individual plaintiff” will have “her own story.” (Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, 1062 (Koval).) A policy that does not exist cannot support certification. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 992.)

But as plaintiff acknowledges, identifying a policy is not enough: to proceed as a class action, she must demonstrate the policy uniformly applied to class members. (Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 512 [“insufficient evidence of a uniform corporate policy” supported denial of class certification], disapproved on another point in Noel v. Thrifty Payless, Inc., supra, 7 Cal.5th at p. 984; Kizer v. Tristar Risk Management (2017) 13 Cal.App.5th 830, 845, fn. 3 [class certification denied where plaintiff could not establish a policy or practice generally applicable to proposed class].)

Plaintiff contends the “undisputed evidence” establishes a common promotion policy applicable to the class. This contention—which focuses on evidence

supporting plaintiff’s position and ignores the evidence supporting the court’s conclusion—misconstrues the standard of review. We review the trial court’s finding regarding commonality for substantial evidence. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022.) We examine whether a “ruling is supported by substantial evidence, and if it is, we may not substitute our own judgment for that of the trial court.” (Dailey v. Sears, Roebuck & Co., supra, 214 Cal.App.4th at p. 988.)

The court determined there was no common manager gatekeeping practice. Substantial evidence supports this determination. Twitter’s evidence illustrated the varying role managers played in selecting candidates for promotions before, and during, the class period. For example, in 2013, before the class period, managers initiated promotions. Later, Twitter changed the process, allowing employees to select whether to pursue a promotion, and empowering them to collect the promotion packet information. In 2015, the company shifted the burden for initiating promotions back to managers.

The parties’ declarations tend to show managers did not—as plaintiff claims—operate under a uniform gatekeeping policy. One proposed class member, Sarah Brown, decided not to pursue a promotion for reasons that had little to do with manager gatekeeping. And there was no gatekeeping function when Yue sought a promotion to level 5. She and her manager began discussing the promotion process when she felt “ready.” Considered together, this evidence demonstrates managers did not play “ ‘uniform and standardized’ ” roles in determining who was considered for a promotion. (Mora v. Big Lots Stores, Inc., supra, 194 Cal.App.4th at p. 509.) Thus, substantial evidence supports the court’s finding that there was no uniform manager gatekeeping policy during the class period.

Plaintiff’s arguments to the contrary are not persuasive. For example, plaintiff points to evidence that some managers encouraged SWEs to begin the promotion process and prepared promotion packets for them. She also relies on written promotion documents in effect during a portion of the class period, claiming they conclusively establish managers functioned as gatekeepers. We disagree. The existence of some evidence tending to show mangers initiated promotions at certain points during the class period does not undermine the court’s conclusion that mangers did not operate pursuant to a uniform gatekeeping policy.

The court also found the company did not have a uniform policy to assess promotion candidates, e.g., that “Impact” and “How” were “highly-subjective” guidelines for managers’ exercise of discretion, rather than a uniform policy. This finding is supported by substantial evidence. Twitter offered declarations demonstrating managers applied the “Impact” and “How” criteria differently: as one manager observed, “demonstrating impact is different for every team.” Moreover, plaintiff’s evidence supports an inference that managers had discretion when assessing promotability, and that not all promotions reflected the promotion criteria. For example, plaintiff admitted she did not know “what it would take for [her] to advance” at the company, and another proposed class member averred Twitter’s promotion standards were a “moving target.” A third declarant described the company’s promotion process as “arbitrary.” And Julie Drake testified not everyone followed the promotion procedure. Together, this evidence amply supports the trial court’s determination that “Impact” and “How” were subjective guidelines triggering individualized inquiries, not a uniform system of assessing candidates. (See Williams-Sonoma Song-Beverly Act Cases (2019) 40 Cal.App.5th 647 [no commonality where employees had discretion to request certain information and did not always do so].)

Koval, supra, 232 Cal.App.4th 1050 supports our conclusion. There, plaintiffs sought to certify a class in a lawsuit alleging Pacific Bell violated California law regarding meal and rest break periods. (Id. at p. 1053.) A division of this court held plaintiffs failed to identify a uniform policy. It explained: “[w]hile Pacific Bell maintained written policies that are uniform, in the sense that they are in writing, the evidence supports the trial court’s conclusion that supervisors did not consistently articulate these policies to class members. Instead, substantial evidence supports the court’s finding that each supervisor conveyed the policies to class members orally, a practice which the evidence also shows resulted in diverse practices and differing interpretations as to what the rules required. In this sense, the policies are far from uniform. . . . [T]his management practice, combined with the confusing overlay of policy manuals containing different combinations of rules that were applicable to the various job classifications at different times, creates a shifting kaleidoscope of liability determinations that render this case unsuitable for class action treatment.” (Id. at p. 1062.)

As in Koval, substantial evidence supports the court’s finding that “Impact” and “How” were not “consistently” applied. (Koval, supra, 232 Cal.App.4th at p. 1062.) Plaintiff’s attempt to distinguish Koval is unavailing, particularly in light of her concession that managers had discretion to implement the policy. Where a policy is implemented various ways, the denial of class certification is not erroneous. (Duran v. U.S. Bank National Assn., supra, 59 Cal.4th at pp. 30–31; Koval, at p. 1059; Davis v. Cintas Corp. (6th Cir. 2013) 717 F.3d 476, 487–489 [no commonality where mangers had discretion regarding hiring decisions].)

Plaintiff contends two cases support class certification: McReynolds v. Merrill Lynch, Pierce, Fenner (7th Cir. 2012) 672 F.3d 482 and Scott v. Family Dollar Stores, Inc. (4th Cir. 2013) 733 F.3d 105. We disagree. In McReynolds, the employer adopted a national policy allowing brokers to team up and share customer account distributions. (McReynolds, at p. 489.) The managers had “a measure of discretion” regarding the policies, but in practice, the discretion was tangential. (Ibid.) Scott concerned rigid, objective criteria guiding managerial discretion over employee salaries, such as mandatory minimum and maximum pay. (Scott, at p. 116.) The managers exercised discretion regarding these policies in a common way, under common direction. (Ibid.) McReynolds and Scott are distinguishable. Here, Twitter’s policy of affording discretion to managers “cannot support a company-wide class no matter how cleverly lawyers may try to repackage local variability as uniformity.” (Bolden v. Walsh Const. Co. (7th Cir. 2012) 688 F.3d 893, 896, 898 [“policy of on-site operational discretion” did not support commonality finding].)

To the extent plaintiff contends the court improperly reached the merits, we disagree. “When evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them.” (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at pp. 1023–1024.) Plaintiff alleged Twitter had a common promotion policy; the court considered this theory in analyzing commonality. Its determination that managers relied on subjective criteria was pertinent to its finding that individual issues would predominate. That the court credited Twitter’s evidence over plaintiff’s does not demonstrate the court improperly evaluated the merits. (See Dailey v. Sears, Roebuck & Co., supra, 214 Cal.App.4th at p. 991.)

We conclude substantial evidence supports the court’s determination that plaintiff failed to establish commonality. Having reached this result, we need not address Twitter’s argument that plaintiff cannot establish “common issues would predominate the causation inquiry” in part because her expert could not link the alleged promotion disparity to the purported gatekeeping policy.

III.

Plaintiff Failed to Establish Her Claims Are Typical

As the party seeking class certification, plaintiff had the burden to establish her claims or defenses were typical of the class. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1090.) The purpose of the typicality requirement “ ‘is to assure that the interest of the named representative aligns with the interests of the class. [Citation.] “ ‘Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.’ ” [Citations.] The test of typicality “is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” ’ ” (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.) Evidence that a representative is subject to unique claims or defenses is a factor when deciding certification (Fireside, at p. 1090) because “issues unique to the class representative [may] become a major focus at trial distracting from prosecution of the class claims.” (Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 846.)

Here, the court determined plaintiff’s claims were atypical because her managers initiated and supported her promotions. As the court explained, “unlike the class she seeks to represent, Plaintiff’s promotions were not hindered by her manger’s ‘gatekeeping.’ ” We agree. Plaintiff acknowledged her managers supported her promotions. In contrast, other proposed class members were not told how to receive a promotion, or had managers who discouraged them from seeking promotions or who lacked the power to recommend them for a promotion. This evidence supports a reasonable inference that other proposed members were not “ ‘ “injured by the same course of conduct” ’ ” as plaintiff. (Seastrom v. Neways, Inc., supra, 149 Cal.App.4th at p. 1502; Payton v. CSI Electrical Contractors, Inc., supra, 27 Cal.App.5th at p. 846 [class representative’s unique claims precluded typicality finding].)

In an effort to establish typicality, plaintiff reframes her legal theory: she argues the gist of her claim is that it takes women longer to get promoted, and that she is typical because she was not promoted. We are not persuaded. Where plaintiff brings a disparate impact claim, she must identify a policy that had a disproportionate adverse effect on class members. The policy, according to plaintiff, was that managers acted as promotion gatekeepers—that they selected employees for promotions—and that they uniformly applied the “Impact” and “How” criteria when assessing candidates for promotion. We discern no abuse of discretion in the trial court’s determination that plaintiff was not typical of the class because the alleged gatekeeping policy did not prevent her from getting promoted.

The court properly concluded plaintiff failed to establish the commonality and typicality requirements. We do not address the court’s lack of superiority finding. (See Kizer v. Tristar Risk Management, supra, 13 Cal.App.5th at p. 847.)

DISPOSITION

The order denying plaintiff’s class certification motion is affirmed. Twitter is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

 

_________________________

Jones, P. J.

WE CONCUR:

_________________________

Needham, J.

_________________________

Burns, J.

A155155