Filed 3/11/20 Puerta v. M.S.R.S., Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

SANDRA PUERTA,

Plaintiff and Appellant,

v.

M.S.R.S., INC.,

Defendant and Respondent.

E071590

(Super.Ct.No. RIC1608914)

OPINION

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed.

Mahoney Law Group, Kevin Mahoney, Katherine J. Odenbreit and Atoy H. Wilson for Plaintiff and Appellant.

Law Office of James M. Gilbert, James M. Gilbert; Law Offices of Darren D. Daniels and Darren D. Daniels for Defendant and Respondent.

Plaintiff and appellant Sandra Puerta appeals the denial of her motion for class certification (Motion) in a wage and hour case. Puerta sought to certify a class of current and former employees of defendant and respondent M.S.R.S., Inc. dba VM International (MSRS), a manufacturer of plastics. She brought the action on behalf of herself and machine operators employed by MSRS alleging that MSRS applied a uniform policy and practice of failing to provide rest periods; failing to pay overtime and requiring off-the-clock work; failing to provide meal breaks; failing to provide accurate wage statements; failing to pay wages at separation of employment; failing to reimburse for necessary business expenditures; a violation of California’s unfair competition law (UCL); and a violation of the Labor Code Private Attorneys General Act (PAGA).

The trial court denied the Motion finding that Puerta was not a suitable class representative and that she had failed to meet her burden of showing the existence of an ascertainable and sufficiently numerous class; a well-defined community of interest; and substantial benefits from certification, which rendered proceeding as a class superior to the alternatives, as required by Code of Civil Procedure section 382.

Puerta makes two claims on appeal: (1) the trial court erred by concluding she was not a suitable class representative and not allowing her time to find a suitable class representative; and (2) the trial court employed an incorrect standard of review by addressing the merits of her claims in denying the Motion.

FACTUAL AND PROCEDURAL HISTORY

A. SECOND AMENDED COMPLAINT

On February 2, 2017, Puerta filed a second amended complaint (SAC) on behalf of herself and class members, which consisted of “all non-exempt employees in the positions of manufacturing operators and other like positions employed by or formerly employed by [MSRS], in the State of California during the Class Period.” The class period was defined as the four years prior to the filing of the SAC, through the date the final judgment was entered.

MSRS’s principal place of business was on Church Street in Riverside. MSRS was a manufacturer of plastic products under its brand name American Made. Puerta worked for MSRS for over 17 years as a “lead manufacturing operator” and was a non-exempt hourly employee. Puerta’s employment with MSRS ended on August 23, 2016.

The Labor Code violations included the following:

(1) The failure to pay minimum wages (Lab. Code, § 1194). Puerta alleged that she and class members were required to work off the clock and were not compensated. Class members were routinely required to work for five minutes prior to their shifts and not compensated for the time. They also were not paid for time they worked during meal periods.

(2) The failure to pay overtime and double-time wages (Lab. Code, § 1194). Puerta and class members were required to work in excess of eight hours days and forty hour weeks and were not compensated.

(3) The failure to provide meal breaks (Lab. Code, §§ 226.7, 512). MSRS required Puerta and class members to work more than five consecutive hours without providing a “duty-free” half hour meal break.

(4) The failure to provide rest breaks (Lab. Code, § 226.7). MSRS failed to implement a policy or practice that would allow Puerta and class members to receive rest periods or work-free periods.

(5) The failure to provide accurate wage statements (Lab. Code, § 226). MSRS failed to provide itemized wage statements as required by Labor Code section 226.

(6) The failure to pay wages due at separation of employment (Lab. Code, § 203).

(7) Finally, MSRS failed to pay for business expenses incurred by Puerta and class members (Lab. Code, § 2802). Puerta also brought actions for a violation of UCL and PAGA.

B. PUERTA’S CLASS CERTIFICATION MOTION

Puerta filed the Motion on June 6, 2018. In the Motion, Puerta sought to certify the class, defined as all person who are employed or have been employed by MSRS as non-exempt hourly employees, in the positions of manufacturing operators and like positions, in the four years prior to the filing of the SAC, and sought to have herself appointed as the class representative. Puerta contended that the Motion should be granted as it qualified under Code of Civil Procedure section 382 because the class representative’s claims were typical of those of the class members; common questions of law and fact predominated; and Puerta would adequately represent the class members. Puerta sought to certify the following claims: MSRS’s failure to pay appropriate regular rate and overtime compensation; provide meal periods and rest periods; provide accurate itemized wage statements; provide all wages due upon separation of employment; reimburse for necessary business expenditures; and a violation of Business and Professions Code section 17200.

Puerta alleged that she had worked for MSRS as both a manufacturer operator and shift leader. As a shift leader, she alleged that she reported to a shift lead supervisor. As a shift leader, she performed the same work as the proposed class members, but she also informed employees of their work schedules and break times. Puerta alleged that the shift lead supervisor would inform her of when class members were to take their breaks and she would pass along the information. MSRS operated 24 hours a day, 7 days a week. Class members and Puerta worked all the shifts and were given MSRS’s employee handbook at the time of their employment.

Puerta alleged that MSRS had a policy that class members could not clock in until their scheduled time but had a practice of requiring employees to arrive before their scheduled times. Puerta’s supervisor, Jose Luis Espinoza, would assign work to Puerta and class members before their scheduled shift but they could not clock in. Puerta provided time cards and pay stubs, which showed that despite her overtime hours, she was not paid for the time.

Puerta further alleged that MSRS engaged in rounding and time shaving; time cards would show that the rounding kept MSRS from paying what employees were actually owed. Despite keeping time to the minute, MSRS rounded the time to the nearest quarter hour.

Puerta alleged MSRS’s policy was to provide a 30-minute meal break for a workday more than five hours. Employees clocked out during this period, but Puerta alleged they were not allowed to leave the premises. She further alleged that meal periods were often given late. Puerta’s time cards showed days where she took no meal breaks or late breaks. Puerta and the class members were owed for the missed meal periods.

The Labor Code required that for every four hours worked, an employee must be given a rest period. MSRS’s written policy stated that these rest periods would be scheduled by the department head. Puerta alleged that MSRS did not have a schedule for rest periods. Puerta and the class members were not given appropriate rest periods.

Puerta further alleged that MSRS had no standard reimbursement policy. Puerta and class members had to purchase their own safety equipment as the provided equipment was inadequate. They were not reimbursed. Puerta was never reimbursed. Further, MSRS did not provide proper wage statements that included missed meal periods and rest periods.

Puerta argued her claims were typical of the class. Puerta was subject to the same common policies and suffered identical harm in terms of unpaid wages as the other class members. A class action was a superior method of resolving the claims.

Puerta provided employee declarations to support the class certification. This included declarations from Efren Brito, Antonio Perez, Claudia Ortega, Yesenia Perez and Irma Nava.

Brito, Nava, Antonio, Ortega, and Yesenia all submitted similar declarations that they were machine operators currently employed by MSRS. They declared they were not compensated for all of the hours they worked. Brito and Yesenia worked overtime for five or 10 minutes on several days and were not compensated. Antonio worked overtime for one or two hours each week and did not think he was compensated. Ortega worked overtime two times each week and was not compensated. Brito, Antonio, Ortega, Yesenia and Nava were given late meal periods and not compensated. Brito’s rest periods were interrupted three times each week. The rest periods of Nava, Ortega, Yesenia and Antonio were also interrupted. If Brito lost or broke his safety goggles, he had to replace them. Nava had to replace her safety gloves and was not compensated. Antonio had to replace his goggles and had to pay for them. Ortega had to replace her goggles and buy a box cutter at her own expense. Yesenia had to buy work gloves and propane and was never reimbursed.

Additional exhibits were attached, including depositions from MSRS’s employees. Virginia Noyola did the scheduling for MSRS’s employees. She testified overtime was allowed only with supervisor approval. A “supervisor” was the equivalent of a “shift lead.” Noyola testified that all supplies were given to employees and there was no need for reimbursement. In 2016, Noyola indicated that MSRS did have a rounding policy, but it was no longer in place in March 2017.

Excerpts from Puerta’s deposition were provided. Puerta testified that she had always been a shift leader during her employment with MSRS. She was responsible for checking the products after they came off the machines. She kept track as to whether employees worked their shifts. She claimed to never have received overtime compensation but she did receive a check when she separated from employment. Puerta would arrive prior to her scheduled work time but she would not clock in prior to her start time otherwise she would get in trouble. She was very confused when testifying regarding whether the machine operators she supervised would clock in at 12:25 for a 12:30 shift; she was not sure if they clocked in early.

MSRS’s employee handbook was provided. It outlined the meal and rest periods. A 10-minute rest period was given for every four hours worked. Rest breaks were scheduled by the department head. An employee was entitled to a 30-minute meal period if he or she worked five or more hours. The employee must clock out for meal period. An employee was free to leave the premises but must return promptly. Meal periods must be given no later than the end of the fifth hour of work. Employees were not allowed to work off the clock. All overtime must be approved by a supervisor.

Puerta provided her own earning statements with corresponding time cards.

C. MSRS’S OPPOSITION

MSRS filed opposition to the Motion (Opposition). Initially, MSRS alleged there was no classification of “manufacturing operator”; there were only machine operators. A shift leader had supervisory responsibility over the machine operators. The shift leader scheduled meal periods and breaks for machine operators and made sure they were taken. A shift leader had to keep track of production and whether employees worked their shifts. There was no actual position of shift lead supervisor; the shift leader was responsible. During the relevant period in the lawsuit, Puerta was a shift leader and not a machine operator.

Machine operators were not to clock in and were not required to show up prior to their shift start. Shift leaders were responsible for scheduling meal periods for machine operators. Employees were allowed to leave the premises during meal periods. Shift leaders scheduled rest breaks. There was no reimbursement policy as the employees were not required to incur any expenses. MSRS argued that Puerta failed to provide adequate evidence to support the Labor Code violations alleged in the SAC.

MSRS provide depositions from the employees who completed declarations in support of the Motion. The depositions contradicted the declarations. For Yesenia, she testified she did not work off the clock, she was given full 30-minute meal periods within the first five hours of her work and took two full rest breaks during her shift. When confronted with paystubs, she admitted to receiving overtime pay. Yesenia denied she ever bought any work gloves. Yesenia indicated that the shift leader advised her when to take breaks. She never complained to her superiors about not getting overtime or proper breaks.

Ortega started working for MSRS in September 2015. She worked in an assembly position for the first four months she was employed by MSRS so it was unclear if her claims pertained to the time she worked as a machine operator. Ortega denied she worked off the clock. She was given the appropriate rest and meal breaks although on some occasions she was given her meal break late. When confronted with pay stubs, she admitted to being paid for overtime. She had purchased her own work goggles but she never took the receipts to management. She had never complained to management that she was not paid for overtime or that she was not being given the appropriate breaks.

Brito started working for MSRS on November 22, 2016. He spent his first six months with MSRS working in a different position and only worked as a machine operator after that time three days a week. It was unclear if his declaration pertained to his time as a machine operator. Brito also stated he did not work off the clock, and he was given the appropriate meal and rest periods. He admitted receiving overtime pay. Brito admitted losing his safety goggles; he did not tell anyone, and he purchased new ones himself. The shift leader advised him of when to take his breaks. Brito had never informed management that he was not being paid proper overtime or that he was not receiving his breaks.

Nava only worked for MSRS for three months in 2015. She never worked overtime and did not work off the clock. She received her meal and rest breaks; she may have taken a late lunch two or three times. Nava bought gloves and a box cutter to use but was never told she had to buy them and never kept her receipts.

Antonio had worked for MSRS since 2009. He was a floorperson and not a machine operator. Nonetheless, he stated he received the appropriate meal and rest breaks; he never worked off the clock; and received proper overtime compensation. He purchased goggles but had not been told he had to purchase them and never asked to be reimbursed. He never complained to management that he was not receiving the appropriate breaks or compensation.

MSRS submitted a declaration from Virginia Mares who was in charge of processing payroll. Overtime was usually not required as only one employee could work on each machine. There was a 30-minute overlap of employees, which was on the clock, so employees had time to transition on and off the machines. Shift leaders were in charge of scheduling meal periods and rest breaks. A shift leader was a position distinct from a machine operator. Puerta was always a shift leader during the relevant time period. There was no position called a shift lead supervisor. No one named Jose Luis Espinoza worked at MSRS’s company. A person named Jesus Mesa was a plant manager but did not supervise Puerta.

Mares had never received a complaint from an employee about meal or rest breaks. Machine operators were not required to start work prior to clocking in. Mares provided pay stubs reflecting that Puerta had received overtime pay in the past. Puerta had stopped taking meal period breaks even though told to take them; she was offered an assistant so she could take her breaks. Machine operators were provided with safety equipment and did not have to purchase their own. Pay stubs for Yesenia, Ortega, Brito, and Antonio were provided and showed compensation for overtime.

An investigation was conducted in October 2017 by MSRS. A form was given to all employees requesting reporting of any complaints about working off the clock and not receiving appropriate breaks. The response was voluntary. Seven forms were provided with the Opposition and none of the employees complained about off-the-clock work or missing breaks.

Noyola, who was MSRS’s human resources manager, also submitted a declaration. She also declared that a shift leader was responsible for making sure the machine operators took their breaks. Puerta had always been a shift leader. In Noyola’s opinion, if machine operators did not get the appropriate meal and rest periods, it was because Puerta violated company policy. There was no shift lead supervisor position. Any problems that a shift leader had with an employee would be reported to Noyola or Mares.

MSRS submitted numerous declarations from current employees and shift leaders. The machine operators employed by MSRS who responded submitted they were not required to work off the clock; they were given the proper rest and meal breaks; and were provided with the necessary safety equipment or purchased their own because they liked their own equipment. Employees of MSRS who worked as shift leaders declared they were responsible for scheduling the machine operator’s breaks. They were not aware of any machine operators who were denied these breaks or meal periods. Also, they never required a machine operator to buy their own safety equipment.

Additional excerpts from Puerta’s deposition were attached to the Opposition. She had discontinued working for MSRS in August 2016. As a shift leader, she had to complete a report at the end of her shift and she used her break time to help people. Machine operators did not have to complete these reports. She trained machine operators. Puerta never told any of the machine operators nor had she heard someone tell them that they had to work after they had clocked out. She only worked on the production line when machine operators needed to go to lunch or on breaks. She oftentimes skipped her rest breaks but no one at MSRS told her to not take the breaks. She admitted that she was not specifically reprimanded for working too early and was never specifically told to work off the clock. She had quit because she was tired of being yelled at every day.

Susanna Aguilera was in charge of scheduling, production reports, and advising the shift leaders what needed to be done during the shift. The shift leader was responsible for making sure the employees took their breaks and lunch. Neither Puerta nor any machine operators had complained to her that they did not get their rest or meal breaks or that they did not get paid for meal breaks. Jesus Mesa declared that he was in charge of factory operations and was not the supervisor of shift leaders.

In addition to the opposition, MSRS filed objections to Puerta’s evidence, which included the declarations from Nava, Brito, Antonio, Ortega, and Yesenia, because they had not been interpreted by a certified Spanish interpreter. MSRS also objected to evidence submitted by Puerta claiming it that lacked foundation.

D. REPLY TO OPPOSITION

Puerta filed a reply to the Opposition (Reply), reiterating that the class request was based on policies by MSRS that impacted all machine operators. Further, a determination of the merits of the class claim was not appropriate in determining the validity of the Motion. Puerta insisted that her job duties were the same as a machine operator. Puerta stated that she and putative class members were pressured not to take breaks and there was no companywide policy that tracked breaks.

Puerta further contended that the investigation forms completed in 2017 by current employees were not made part of discovery and should be excluded. Puerta was unable to determine if they were voluntarily completed. Puerta insisted that she was a suitable representative of the class. Her claims were typical of the class. Puerta filed objections to MSRS’s evidence including the declarations submitted by Gilbert, Noyola and Mares.

Noyola’s deposition excerpt was also included with the Reply, which provided that in June and July 2016, rounding of time did occur. The rounding policy ended in March or April 2017.

E. HEARING AND RULING

A hearing was conducted on October 1, 2018. After the hearing, the trial court issued a written ruling as follows: “The motion is denied because plaintiff fails to establish that predominant questions of law or fact are proper for class treatment and she also fails to establish that she is a suitable class representative. [¶] . . . [¶] First, plaintiff is not a proper class representative for the class she represents. ‘The cases uniformly hold that a plaintiff seeking to maintain a class action must be a member of the class he claims to represent.’ (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 875.) Plaintiff was not a machine operator (the class she purports to represent); instead, plaintiff was a Shift Leader with different responsibilities from the putative class of machine operators. The Shift Leader has supervisory responsibility over the machine operators, including scheduling meal and rest breaks, and making sure that breaks are taken. This analysis is also true on the proffered argument for time rounding; the chosen plaintiff does not adequately represent the class on this issue. [¶] Second, the employees who signed declarations supporting the motion all contradicted the statements attributed to them in the motion when they were deposed. Many of the deposed employees disavowed any requirement to work off the clock. In Brinker, the California Supreme Court indicated that such dispute, ‘where no substantial evidence points to a uniform, companywide policy, proof of off-the-clock liability would have had to continue in an employee-by employee fashion, demonstrating who worked off the clock, how long they worked, and whether [MSRS] knew or should have known of their work.’ (Brinker Restaurant Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1052 (Brinker). Here, there is conflicting evidence so there is no proof of a uniform companywide policy that required employees to work off the clock or which resulted in receipt of anything less than t[h]eir required wages. This is also true as to claims dealing with meal and rest breaks; overtime; as well as business expenses. This means that this litigation will require individualized proof. [¶] Third, the wage claim violation under Labor Code section 226 also fails due to a failure to demonstrate that violations occurred.”

DISCUSSION

Puerta makes two claims on appeal. First, she insists that reversal is required because the trial court denied the Motion based on improper criteria. Specifically, it relied on the merits of the claims rather than determining if there was a companywide policy that was amenable to class treatment. Second, Puerta claims that she was a suitable class representative. In the alternative, she should have been given time to substitute a suitable representative.

A. 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. . . .’ The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citations.] 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.” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On); Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1298 (Jaimez).)

“In the wage and hour context, courts routinely have found suitable for class treatment a claim alleging an employer consistently applied a uniform policy that harmed an identifiable class of employees when the policy and the harm it caused are subject to common proof for all class members. [Citation.] To obtain certification of such a class, the class proponent must ‘present substantial evidence that proving both the existence of [the employer’s] uniform policies and practices and the alleged illegal effects of [the employer’s] conduct could be accomplished efficiently and manageably within a class setting.’ ” (Kizer v. Tristar Risk Management (2017) 13 Cal.App.5th 830, 842 (Kizer).)

“The community of interest requirement . . . requires a showing that the proposed class representatives have claims or defenses typical of those held by the class and can adequately represent the class.” (Evans v. Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1421.) “ ‘The typicality requirement’s purpose “ ‘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.” ’ ” ’ ” (Kizer, supra, 13 Cal.App.5th at p. 840.)

“California courts consider ‘pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant’s centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.’ [Citation.] ‘Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.’ ” (Jaimez, supra, 181 Cal.App.4th at p. 1298.)

Trial courts are “ideally situated to evaluate the efficiencies and practicalities of permitting group action” and are afforded great discretion in granting or denying certification. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)

“We review the trial court’s ruling for abuse of discretion. ‘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. . . . [Accordingly,] 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]. . . . “Any valid pertinent reason stated will be sufficient to uphold the order.” ’ ” (Sav-On, supra, 34 Cal.4th at pp. 326-327.)

B. DENIAL OF CLASS TREATMENT

Puerta contends that the trial court erred by weighing the evidence to determine the ultimate issue of fact that conflicting testimony defeated certification when objective documentary evidence was presented to support Puerta’s theory of liability. In other words, the trial court used an improper criteria when ruling on the Motion.

In Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429, the California Supreme Court indicated that “[t]o obtain certification, a party must establish the existence of both an ascertainable class and a well-defined community of interest among the class members.” (Id. at p. 435.) It further indicated that an assessment of the merits of the legal claim was improper. (Id. at pp. 437-438.) However, it further found, “Nothing we say today is intended to preclude a court from scrutinizing a proposed class cause of action to determine whether, assuming its merit, it is suitable for resolution on a classwide basis. Indeed, issues affecting the merits of a case may be enmeshed with class action requirements, such as whether substantially similar questions are common to the class and predominate over individual questions or whether the claims or defenses of the representative plaintiffs are typical of class claims or defenses. [Citations.] . . . [T]rial courts retain broad discretion to conduct the proceedings in an orderly and just manner.” (Id. at p. 443; see also Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1358.)

In Kizer, supra, 13 Cal.App.5th 830, a case involving a denial of class certification, two claims examiners sought class certification to prove their employer required unpaid overtime from them and the purported class members. The trial court denied certification, finding there was insufficient evidence of a generally applicable written or de facto policy that required claims examiners to work overtime. The trial court noted, “Plaintiffs presented evidence of the written job requirements and Tristar’s expectations for claims examiners, but the court could not infer those requirements and expectations required claims examiners to work overtime without evidence from an industry expert or other claims examiners explaining they could not complete Tristar’s workload assignments without working overtime. Although Plaintiffs’ most recent declarations explained they had to work overtime to complete their assigned files, the court explained those declarations were ‘anecdotal’ and did not support class certification because they failed to establish Plaintiffs’ experiences were typical or common to all claims examiners.” (Kizer, at p. 837.)

On appeal, the court of appeal affirmed the finding of the trial court. It noted, “Substantial evidence supports the trial court’s findings, and therefore we cannot say the court abused its discretion in denying Plaintiffs’ motion. Plaintiffs presented no substance evidence to show Tristar had a written or de facto policy requiring claims examiners to work overtime, or that working overtime by claims examiners otherwise was subject to common proof. Plaintiffs presented their own declarations, but no declarations or testimony from any other claims examiners. In their final supplemental declarations, Plaintiffs stated they routinely had to work significant overtime to keep up with their assigned caseloads, but Plaintiffs failed to state their experience was typical of other claims examiners or that they observed other claims examiners working overtime to keep up with their caseloads. In contrast, Tristar presented declarations from several claims examiners and supervisors explaining they worked their regular schedules and everyone typically left at the end of their scheduled shift. The court acknowledged Plaintiffs’ declarations should they work overtime to keep up, but the court found those declarations failed to establish overtime work was subject to common proof because Plaintiffs’ declarations were merely “anecdotal” and did not show Plaintiffs’ experience was typical of other claims examiners. We are in no position to second guess the court’s assessment of the evidence.” (Kizer, supra, 13 Cal.App.5th at pp. 843-844.)

In Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, the plaintiff argued that class certification was appropriate due to a classwide policy of tacking on rest periods to meal breaks. The defendant submitted declarations from several employees that they were given proper rest periods. (Id. at p. 840.) The trial court concluded that individual issues would predominate because employees in particular working groups were permitted to take the proper rest breaks. (Ibid.) The appellate court concluded that the trial court could give credit to the declarations. It concluded, “Based on that evidence, the trial court reasonably concluded that individual issues would predominate. Individual workers who were given regular, scheduled mid-afternoon breaks have no claim against [the defendant], because [the defendant] did not deny them their rights under Wage Order 16. As the trial court observed, separating those individuals from persons who received no mid-afternoon break would ‘turn into an individual-by-individual exercise.’ ” (Id. at p. 841.)

Here, the trial court did not impermissibly consider the merits of Puerta’s claims. Rather, the trial court assessed the evidence presented and found that Puerta had failed to meet her burden of showing that there was a uniform, companywide policy regarding off-the-clock work, rest and meal breaks, overtime and business expenses. Further, there was no evidential support that alleged illegal effects of MSRS’s conduct could be accomplished in a class setting. As such, the claims would have to be addressed individually rather than as a class.

Relevant here, Puerta’s first cause of action was based on a violation of Labor Code section 1194. Puerta alleged that MSRS failed to pay the appropriate minimum wage based on a policy and practice of requiring employees to work off the clock. Puerta insisted that she and class members were routinely required to begin work five minutes prior to clocking in. The second cause of action was based on the policy that MSRS did not pay overtime. MSRS had a policy of not properly scheduling workers, which resulted in Puerta and class members working in excess of eight hours each day or 40 hours each week. The third and fourth causes of action referred to MSRS’s policy of not scheduling rest and meal breaks. The seventh cause of action referred to the reimbursement of business expenditures. MSRS had a policy of not reimbursing Puerta and the class members for necessary business expenditures.

MSRS utilized an employee manual that set forth the rules for overtime pay, rest and meal periods, and time keeping. These rules applied to all employees. Supervisor approval was required for any overtime. Puerta did not allege that these policies violated any Labor Code, and the written polices did not provide a classwide method of proving her claim. Rather, Puerta relied upon evidence that the company employed an illegal practice of not following their policies through the use of declarations from putative class members. (See Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1368.) The trial court reasonably could look to the declarations and the depositions of these parties to determine whether there was companywide policy, which could be used to establish class wide liability.

As for the claim of off-the-clock work and overtime, Puerta had claimed in the Motion that MSRS had a policy that class members could not clock in until their scheduled times but had a practice of requiring employees to arrive before their scheduled times, i.e. they had to work off the clock. On appeal, she points to the evidence of her time card, which she insisted showed she had worked overtime but had not been paid the proper wages. Puerta insisted that she would work before clocking in. She did admit that she was never specifically told to work off the clock. However, as to the machine operators, her testimony was not clear that they were working off the clock. In fact, she had never told the machine operators, and had never heard the machine operators be told they had to work off the clock.

Further, in their depositions, Yesenia testified she never worked off the clock and when confronted with her pay stubs, admitted she was paid for overtime. Ortega also denied working off the clock. Her pay stubs showed she was paid for overtime. Brito admitted to receiving overtime pay and he had never worked off the clock. Nava only worked for MSRS for three months in 2015 and never worked off the clock or overtime. Antonio was a floorperson, not a machine operator, but also never worked off the clock and he was paid for overtime.

Puerta argues on appeal that she presented evidence through MSRS’s “witness testimony” that she and class members had to arrive at the work facility five minutes prior to their shift. However, she only provides citations to the Motion as evidence, which does not support that MSRS admitted to this policy. Puerta did not provide substantial evidence that MSRS had a companywide policy of requiring off-the-clock work or unpaid overtime. Moreover, since all of the employees denied ever working off the clock, she failed to show a well-defined community interest requiring class treatment. (Sav-On, supra, 34 Cal.4th at p. 326.) As such, these claims would have to be resolved on an individual basis.

Puerta alleged that meal periods were oftentimes given late or not taken at all by the class members. Further, rest periods were not properly given or accounted for. Puerta provided her own deposition that she “chose” not to take rest breaks and that she could not leave during meal breaks. During her deposition, she indicated she did not take rest breaks because of the work load and not because she was told she could not take her rest breaks. However, in their depositions, all of the other employees stated they were given their meal and rest periods. There was no substantial evidence of a companywide policy impacting rest and meal periods. Any violation would have to be shown on an individual basis.

Finally, although some of the employees stated in their depositions that they purchased their own safety equipment, none of them requested reimbursement by MSRS and were never told to purchase items by MSRS. Mares attested that machine operators were not required to purchase equipment and were provided safety equipment.

Here, the trial court could reasonably rely upon the depositions of the five employees in concluding that Puerta had failed to establish “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.” (Kizer, supra, 13 Cal.App.5th at p. 839.) The trial court could reasonably determine based on the evidence that individual issues predominated, and that class certification was inappropriate. Only Puerta attested to the violations and the depositions were sufficient evidence of other employees who were not suffering the same problems as Puerta. The trial court did not employ an improper criterion in denying the Motion.

C. CLASS REPRESENTATION

Puerta additionally argues the trial court erred by finding that she was not a proper class representative and additionally argues, for the first time on appeal, that she should have been given an opportunity to find a suitable class representative.

“A proposed representative must adequately represent the class, and a trial court may conclude that requirement is not met if the class member ‘fail [s] to raise claims reasonably expected to be raised by the members of the class.’ ” (Evans v. Lasco Bathware, Inc., supra, 178 Cal.App.4th at p. 1432.)

Here, Puerta admitted she was a shift leader and had held that position during the entirety of her employment with MSRS. She was responsible for running the production line. She also was responsible for making sure the employees she supervised took their meal and rest breaks. She claimed to be supervised by Jose Luis Espinoza, but he was not employed by MSRS. Puerta was not in the same position as machine operators. In fact, she could conceivably be called to testify during the litigation to establish whether class members were given appropriate rest and meal breaks. Puerta as the supervisor of the machine operators could not bring claims on their behalf. More importantly, as set forth ante, there simply was no substantial evidence that any of the machine operators had suffered because of any companywide policy. Puerta only presented evidence that she had been denied overtime, rest and meal breaks, and purchased items for which she was not reimbursed. There was no class to represent based on the evidence presented in the trial court.

Additionally, Puerta contends she is entitled to amend the SAC to substitute a suitable class representative. “The lack of an adequate class representative, however, does not justify the denial of the class certification motion. Instead, the trial court must allow plaintiffs an opportunity to amend their complaint to name a suitable class representative.” (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999; see also Jaimez, supra, 181 Cal.App.4th at p. 1309.) However, this does not mean that the trial court must grant leave to amend and substitute a new representative in every case. (Payton v. CSI Electrical Contractors, Inc., supra, 27 Cal.App.5th at pp. 848-849.) Here, the trial court found that the Motion should be denied because there was no uniform policy that required class certification. “The futility of a proposed amendment can provide a ground to deny a request to amend.” (Payton, at p. 851.) Amending to substitute a class representative in this case would be futile as it would not resolve the problem of class certification because individual issues would still predominate.

DISPOSITION

We affirm the trial court’s order denying appellant’s motion for class certification. As the prevailing party, respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.