Filed 6/26/17 Modified and Certified for Pub. 7/26/17 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

VALERIE KIZER et al.,

 Plaintiffs and Appellants,

v.

TRISTAR RISK MANAGEMENT,

 Defendant and Respondent.

 G052558

 (Super. Ct. No. 30-2014-00707394)

 O P I N I O N 

Appeal from an order of the Superior Court of Orange County, Kim Garlin 

Dunning, Judge. Affirmed.

Blumenthal, Nordrehaug & Bhowmik, Norman B. Blumenthal and Kyle R. 

Nordrehaug for Plaintiffs and Appellants.

Seyfarth Shaw, Jon D. Meer, Sheryl L. Skibbe and Leo Q. Li for Defendant 

and Respondent. 

* * *
2

Plaintiffs and appellants Valerie Kizer and Sharal Williams (collectively, 

Plaintiffs) filed this putative class action against their former employer, defendant and 

respondent Tristar Risk Management (Tristar), alleging Tristar failed to pay Plaintiffs and 

its other claims examiners overtime compensation because it misclassified them as 

exempt from California‟s overtime laws.

After twice continuing the hearing for supplemental briefing and evidence, 

the trial court denied Plaintiffs‟ class certification motion because they failed to present 

substantial evidence showing their claims were typical of the proposed class and common 

issues of law or fact predominated. The court found Tristar‟s alleged misclassification of 

the proposed class members suitable for class treatment, but it denied the motion because 

misclassification does not give rise to liability on an overtime claim unless the employees 

first show they worked hours or days that required overtime compensation. The court 

explained Plaintiffs failed to present evidence showing Tristar had a generally applicable 

policy or practice that required employees to work overtime, and therefore Plaintiffs 

failed to show they could establish Tristar‟s liability based on proof common to all class 

members. Consequently, the court concluded class treatment of Plaintiffs‟ claims was 

not appropriate.

Plaintiffs contend the trial court erred because the amount of overtime 

worked by the individual class members is a damages issue, and the need for individual 

proof of damages is not a proper basis for denying class certification. Plaintiffs, 

however, misconstrue the governing legal standards and the basis for the court‟s ruling.

The trial court did not deny the motion based on Plaintiffs‟ failure to show 

the amount of overtime worked by each putative class member. Rather, the court denied 

the motion because Plaintiffs failed to show that whether the putative class members 

worked any overtime at all was subject to common proof. To satisfy the commonality 

requirement for class certification, Plaintiffs were required to show their liability theory 

could be established on a classwide basis through common proof. Typically, in overtime 
3

claims, plaintiffs show this by presenting evidence of an employer policy or practice that 

generally required the class members to work overtime. Plaintiffs presented no evidence 

of any such policy or practice.

Plaintiffs also contend the trial court erred in refusing class certification on 

their claim under California‟s unfair competition law (UCL; Bus. & Prof. Code, § 17200 

et seq.). According to Plaintiffs, the UCL authorizes restitution and other relief without a 

showing that each class member individually suffered injury, and therefore Plaintiffs‟ 

were not required to present evidence of the amount of overtime each putative class 

member worked. Plaintiffs again misconstrue the governing law. The cases Plaintiffs 

cite address standing to bring a UCL claim; they do not address the showing required to 

obtain class certification. As explained below, the governing case law makes clear that, 

aside from standing, a plaintiff seeking class certification on a UCL claim still must 

establish common issues of law or fact predominate, the representative‟s claim is typical 

of the class, and all other elements required for class certification. Because substantial 

evidence supports the court‟s decision Plaintiffs failed to make that showing, we affirm 

the court‟s decision to deny class certification.

I

FACTS AND PROCEDURAL HISTORY

Tristar provides third party risk management services, including claims 

adjusting and administrative services, with specialization in handling worker‟s 

compensation and general liability claims. Tristar‟s California clients include privately 

held, self-insured companies, publicly traded companies, and public entities, such as 

cities and counties. Tristar maintains branch offices in nine cities throughout California. 

Each branch typically is staffed with a branch manager, claims supervisors, 

administrative staff, and claims examiners I, II, and III. 
4

Under Tristar‟s standardized “Position Description,” the job duties and 

responsibilities for its claims examiners include managing a caseload of 150 to 180 

worker‟s compensation files, investigating and fixing claims, managing medical 

treatment and billing, setting reserves, settling and finalizing claims, documenting all 

actions, and communicating with clients and claimants. Claims examiners typically work 

on claims for one client at a time, and the guidelines, protocols, rules, and expectations 

for managing the claims vary from client to client. Claims supervisors review files and 

supervise the work of claims examiners under standardized policies and procedures to 

ensure the claims examiners follow the necessary procedures and meet deadlines. 

Tristar‟s normal work schedule for claims examiners required them to work 7.5 hours per 

day, but Tristar also offered several alternative work schedules that allowed claims 

examiners to work 8.33 or 8.5 hours per day in exchange for receiving every other

Monday or Friday off. Most claims examiners elected to work under one of Tristar‟s 

alternative work schedules. 

Kizer worked for Tristar as a claims examiner III from February 2011 to 

January 2014, and Williams worked for Tristar as a claims examiner II from April 2006 

to January 2014. In February 2014, Plaintiffs filed this putative class action against 

Tristar alleging it misclassified them and other similarly situated claims examiners as 

exempt from California‟s overtime laws. According to Plaintiffs, Tristar required its

claims examiners to work more than eight hours a day and 40 hours per workweek, but 

paid no overtime based on the exempt classification it applied to its claims examiners. 

The complaint alleges claims for (1) UCL violations, (2) failure to pay overtime 

compensation (Lab. Code, §§ 510, 1194, 1198), (3) failure to provide itemized wage 

statements (Lab. Code, § 226), and (4) failure to provide wages when due (Lab. Code, 

§§ 201, 202, 203). Tristar filed an answer denying liability and asserting an affirmative 

defense based on the overtime exemption for administrative employees established by 
5

Industrial Welfare Commission wage order No. 4-2001. (See Cal. Code Regs., tit. 8, 

art. 4, § 11040, subd. 1(A)(2).) 

In November 2014, Plaintiffs filed a motion to certify a class composed of 

“„all individuals who are or previously were employed by [Tristar] as Claims 

Examiner[s] II and Claims Examiner[s] III in [Tristar‟s] Workers‟ Compensation 

Division between February 25, 2010 and December 31, 2014.‟”

1

 Plaintiffs argued class 

certification was appropriate to determine their claim that Tristar had a uniform policy of 

misclassifying its claims examiners as exempt under wage order No. 4-2001. According

to Plaintiffs, they planned to “bifurcate liability from damages such that a trial on the 

propriety of the exemption can first proceed before damages are assessed.” In support, 

Plaintiffs offered evidence describing the job duties of Tristar claims examiners and the 

supervision Tristar imposed on them to show they could establish by proof common to 

the entire class that the administrative employee exemption did not apply. Tristar 

opposed the motion, arguing individual issues regarding how each claims examiner 

performed his or her job predominated on several of the elements necessary to establish 

the administrative employee exemption. 

In April 2015, the trial court conducted a hearing on Plaintiffs‟ motion. 

The court heard argument and continued the hearing for the parties to submit 

supplemental briefing and evidence on whether each element of the administrative 

employee exemption could be tried based on evidence common to the entire class, and if 

so, how. After receiving supplemental briefing, the court conducted another hearing on 

Plaintiffs‟ motion in June 2015. 

 

1

In later briefing, Plaintiffs modified the class definition to include “all 

individuals who are or previously were employed by [Tristar] as Claims Examiner II and 

Claims Examiner III in [Tristar‟s] Workers‟ Compensation Division between 

February 25, 2010 and December 31, 2014 who did not work as Return to Work 

Coordinators, Backup Supervisors, or Hearing Representatives.” The modifications to 

the class definition have no bearing on the trial court‟s ruling or this appeal.
6

The court issued a tentative ruling to deny the motion, explaining Plaintiffs 

had shown that some elements of the administrative employee exemption may be subject 

to common proof, but they failed to show that all of the elements could be established on 

a classwide basis. The court further explained that even if the misclassification claim 

could be tried on a classwide basis, Plaintiffs had failed to show a class action was 

appropriate because “proof of misclassification is only part of the equation. 

Misclassification itself does not result in automatic liability. Missing from [P]laintiffs‟ 

motion is any evidence that [Tristar] had a uniform policy of requiring putative class 

members to work overtime and that putative class members in fact worked overtime.” 

According to the trial court, “to establish liability at trial, Plaintiffs will bear the burden 

of proving that they (and the members of any certified class) in fact worked sufficient 

hours per day and/or week to be entitled to overtime compensation, which they did not 

receive. The burden would then shift to [Tristar] to prove any affirmative defense (such 

as exemption or the use of a properly-enacted alternative workweek schedule). . . . [¶] 

. . . [¶] Even Plaintiffs‟ declarations omit any discussion of whether they worked 

overtime. In the absence of such proof, certification of a class to pursue Plaintiffs‟ 

overtime claim is appropriately denied.” The court continued the hearing to provide 

Plaintiffs an additional opportunity to correct these deficiencies. 

In July 2015, the trial court conducted the third hearing on Plaintiffs‟ 

motion after receiving more supplemental briefing and evidence. Plaintiffs conceded all 

elements of the administrative employee exemption except the general supervision 

element because the exemption does not apply if one element is lacking. Plaintiffs 

represented they could defeat the general supervision element by presenting classwide 

evidence regarding Tristar‟s generally applicable policies and procedures governing 

claims examiners and their work. 

The trial court accepted those concessions and found the general 

supervision element could be tried on a classwide basis. Nonetheless, the court denied 
7

Plaintiffs‟ motion because it found they failed to present substantial evidence establishing 

their claims were typical of the class or that common issues of law or fact predominated 

on Plaintiffs‟ overtime claims. 

The court explained Plaintiffs failed to present any evidence of a generally 

applicable written or de facto policy that required claims examiners to work overtime. 

According to the court, 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 the workload Tristar assigned 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. 

The court also found “there is no substantial evidence that any other 

potential class members suffered the same injury.” “Without credible evidence that more 

than two of the more than 450 Claims Examiner[s] II and III worked overtime,” the court 

explained it “[could] not conclude that a common fact issue exists, much less 

predominates.” Finally, the court explained these deficiencies in Plaintiffs‟ evidence 

rendered class certification inappropriate on all of Plaintiffs‟ claims because they 

acknowledged their claims derived from the overtime claim. 
8

II

DISCUSSION

A. Governing Legal Principles

1. Overtime Pay Rules and Exemptions

“California‟s Labor Code generally requires overtime pay for employees 

working more than [eight hours in one workday or] 40 hours in a given workweek.” 

(Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 978 (Dailey); see Lab. 

Code, § 510, subd. (a).) The Legislature, however, authorized the Industrial Welfare 

Commission to establish exemptions from the overtime pay requirements for “„executive, 

administrative, and professional employees‟” when certain conditions are met. (Dailey, 

at pp. 978-979; see Lab. Code, § 515, subd. (a).)

The exemption at issue here is the exemption for administrative employees. 

Industrial Welfare Commission wage order No. 4-2001 governs this exemption and 

establishes a five-part test to determine whether it applies. (Dailey, supra, 

214 Cal.App.4th at p. 979; Eicher v. Advanced Business Integrators, Inc. (2007) 

151 Cal.App.4th 1363, 1371; see Cal. Code Regs., tit. 8, art. 4, § 11040, subd. 1(A)(2).) 

For the exemption to apply, “[t]he employee must (1) perform „office or non-manual 

work directly related to management policies or general business operations‟ of the 

employer or its customers, (2) „customarily and regularly exercise[] discretion and 

independent judgment,‟ (3) „perform[] under only general supervision work along 

specialized or technical lines requiring special training‟ or „execute [] under only general 

supervision special assignments and tasks,‟ (4) be engaged in the activities meeting the 

test for the exemption at least 50 percent of the time, and (5) earn twice the state‟s 

minimum wage.” (Eicher, at p. 1371; see Cal. Code Regs., tit. 8, art. 4, § 11040, 

subd. 1.(A)(2).) “[E]ach of the five elements must be satisfied to find the employee 

exempt as an administrative employee.” (Eicher, at p. 1372.)
9

This and other “exemptions from statutory mandatory overtime provisions 

are narrowly construed, and the employer bears the burden of proving the employee‟s 

exemption as an affirmative defense.” (Walsh v. IKON Offices Solutions, Inc. (2007) 

148 Cal.App.4th 1440, 1453, fn. 8; see Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 

785, 794-795.) The employee, however, bears the initial burden to show he or she 

worked overtime hours without receiving overtime pay before the employer must 

establish the applicability of any exemption. (Sotelo v. Medianews Group, Inc. (2012) 

207 Cal.App.4th 639, 654 (Sotelo); see Bell v Farmers Ins. Exchange (2004) 

115 Cal.App.4th 715, 747-748 (Bell).) 

2. Class Action Requirements

“Originally creatures of equity, class actions have been statutorily 

embraced by the Legislature whenever „the question [in a case] 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 . . . .‟” (Brinker Restaurant Corp. v. 

Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker); see Code Civ. Proc., § 382.)

“The 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. [Citations.] „In turn, 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.”‟” (Brinker, supra, 53 Cal.4th at p. 1021.) The party 

seeking class certification bears the “burden to support each of the above factors with a 

factual showing.” (Sotelo, supra, 207 Cal.App.4th at p. 647; see Sav-On Drug Stores, 

Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On); Dailey, supra, 
10

214 Cal.App.4th at p. 989 [party seeking class certification “required to present 

substantial evidence” establishing propriety of class treatment].)

“„The certification question is “essentially a procedural one”‟ [citation] that 

examines „whether the theory of recovery advanced by the proponents of certification is, 

as an analytical matter, likely to prove amenable to class treatment.‟” (Martinez v. Joe’s 

Crab Shack Holdings (2014) 231 Cal.App.4th 362, 372 (Martinez); see Sav-On, supra, 

34 Cal.4th at pp. 326-327.) “„“In determining the propriety of a class action, the question 

is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the 

merits, but rather whether the requirements of [class certification] are met.”‟” (Brinker, 

supra, 53 Cal.4th at p. 1023.) “[R]esolution of disputes over the merits of a case 

generally must be postponed until after class certification has been decided [citation], 

with the court assuming for purposes of the certification motion that any claims have 

merit.” (Brinker, at p. 1023; Martinez, at p. 372 [“The court must assume the class 

claims have merit and resolve disputes regarding the claims‟ merits only when necessary 

to determine whether an element for class certification is satisfied”].)

Here, the trial court denied class certification because it found Plaintiffs 

failed to establish their claims were typical of the proposed class and that common 

questions of law or fact predominated over individual questions. “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.‟”‟” (Martinez, supra, 231 Cal.App.4th at p. 375.)

“On the issue of whether common issues predominate in the litigation, a 

court must „examine the plaintiff‟s theory of recovery‟ and „assess the nature of the legal 
11

and factual disputes likely to be presented.‟” (Dailey, supra, 214 Cal.App.4th at p. 988.) 

“The „ultimate question‟ . . . is whether „the issues which may be jointly tried, when 

compared with those requiring separate adjudication, are so numerous or substantial that 

the maintenance of a class action would be advantageous to the judicial process and to 

the litigants.‟ . . . „As a general rule if the defendant‟s liability can be determined by 

facts common to all members of the class, a class will be certified even if the members 

must individually prove their damages.‟” (Brinker, supra, 53 Cal.4th at pp. 1021-1022.) 

The trial court “must determine whether the elements necessary to establish liability are 

susceptible of common proof or, if not, whether there are ways to manage effectively 

proof of any elements that may require individualized evidence.” (Id. at p. 1024.) 

“Predominance is a factual question [for the trial court].” (Id. at p. 1022.)

“On review of a class certification order, an appellate court‟s inquiry is 

narrowly circumscribed. „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: “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.” [Citation.] 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.‟” (Brinker, 

supra, 53 Cal.4th at p. 1022.)

“In determining whether the record contains substantial evidence 

supporting the ruling, a reviewing court does not reweigh the evidence and must draw all 

reasonable inferences supporting the court‟s order.” (Dailey, supra, 214 Cal.App.4th at 

p. 988; see Sav-On, supra, 34 Cal.4th at p. 328.) “The reviewing court „must examine the 

trial court‟s reasons for denying class certification.‟ [Citation.] When reviewing an order 

denying class certification, appellate courts „consider only the reasons cited by the trial 

court for the denial, and ignore other reasons that might support denial.‟” (Jaimez v. 
12

Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1297-1298.) “„“Any valid pertinent 

reason stated will be sufficient to uphold the order.”‟” (Sav-On, at p. 327.)

B. The Trial Court Did Not Abuse Its Discretion in Denying Class Certification

Based on Plaintiffs’ Failure to Show Common Issues Predominated 

1. The Overtime Claims

2

Plaintiffs contend the trial court erred by applying an improper legal 

standard because it found Plaintiffs failed to show common questions of law or fact 

predominated based on Plaintiffs‟ “purported failure to show the amount of overtime 

worked by the class.” According to Plaintiffs, whether each class member worked 

overtime and the amount they worked is a damages issue that the governing legal 

standards prohibited the court from considering at the class certification stage. Plaintiffs 

misconstrue both the governing legal standards and the court‟s order.

As explained above, the ultimate issue on the predominance factor is 

whether the plaintiff‟s theory of liability is likely to prove amenable to class treatment. 

(Brinker, supra, 53 Cal.4th at p. 1021.) “Ordinarily, class treatment of a claim is 

appropriate if the facts necessary to establish liability are capable of common proof, 

including the so-called „“fact of damage,”‟ that is, the existence of harm establishing an 

entitlement to damages. [Citation.] If the defendant‟s liability can be determined „“„by 

facts common to all members of the class,‟”‟ a class may be certified even though class 

members must individually establish the amount of their [damages].” (Safeway, Inc. v. 

Superior Court (2015) 238 Cal.App.4th 1138, 1154 (Safeway).) But “„“[t]here can be no 

class certification unless it is determined by the trial court that similarly situated persons 

 

2

Aside from the UCL claim, we consider all of Plaintiffs‟ claims collectively 

because Plaintiffs conceded in the trial court all their claims were derivative of their 

overtime claim, and, with the exception of the UCL claim, they do not treat any of the 

claims separately on appeal.
13

have sustained damage. There can be no cognizable class unless it is first determined that 

members who make up the class have sustained the same or similar damage.”‟” (Ali v. 

U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1350.) 

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. (Brinker, supra, 53 Cal.4th at p. 1033.) 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.” (Dailey, supra, 214 Cal.App.4th at p. 989; see Duran 

v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29.) Establishing a uniform policy that 

an employer consistently applied to misclassify a group of employees as exempt from 

overtime requirements is not sufficient to support class certification because 

misclassification alone does not establish liability for overtime violations. (Sotelo, supra, 

207 Cal.App.4th at p. 655.)

In Sotelo, a group of newspaper delivery people sued a conglomerate of 

newspapers, alleging they intentionally misclassified the plaintiffs as independent 

contractors to avoid paying overtime compensation. (Sotelo, supra, 207 Cal.App.4th at 

pp. 644-645.) The trial court denied the plaintiffs‟ motion for class certification because 

they failed to demonstrate that overtime work by the potential class members could be 

shown by common evidence regardless of whether the newspapers misclassified the class 

members: “„Plaintiffs must prove that putative class members in fact worked sufficient 

days and/or hours to be entitled to overtime . . . . These inquiries involve the examination 

of different facts from the classification question; the motion, however, fails to discuss 

whether there is common evidence on this issue.‟” (Id. at pp. 652-653.) The plaintiffs 
14

appealed, arguing, as Plaintiffs do here, that whether they worked overtime “go[es] to 

damages” and does not prevent class certification. (Id. at p. 653.)

The Court of Appeal rejected that argument and affirmed the trial court‟s 

order because “simply having the status of an employee does not make the employer 

liable for a claim for overtime compensation . . . . An individual employee establishes 

liability by proving actual overtime hours worked without overtime pay . . . . A class, on 

the other hand, . . . may establish liability by proving a uniform policy or practice by the 

employer that has the effect on the group of making it likely that group members will 

work overtime hours without overtime pay . . . . [¶] . . . [The plaintiffs‟] allegation that 

[the newspapers] have misclassified putative class members as [independent contractors]

rather than employees is only part of the equation. . . . [The plaintiffs] have not alleged 

that [the newspapers] have a uniform policy that requires putative class members to work 

overtime.” (Sotelo, supra, 207 Cal.App.4th at p. 654.)

Here, the trial court found Plaintiffs failed to present substantial evidence 

they could establish through proof common to all potential class members that Tristar 

generally required all claims examiners to work overtime, and therefore Plaintiffs failed 

to show “a common fact issue exists, much less predominates.” Citing Sotelo, the court 

explained whether Tristar misclassified all claims examiners as exempt formed only part 

of the liability equation because statutory exemptions from overtime requirements are 

affirmative defenses on which the employer bears the burden of proof. Before any court 

or jury may consider whether an employer‟s classification of a group of employees as 

exempt subjects the employer to liability on an overtime claim, the employees must show 

they worked overtime, which then would require the employer to show it either paid

overtime compensation or correctly applied an exemption. According to the court, 

Plaintiffs focused on the classification issue, but failed to present any evidence showing

class treatment was appropriate on whether Tristar required claims examiners to work 

overtime. 
15

Contrary to Plaintiffs‟ contention, the court did not deny the motion 

because Plaintiffs failed to show the amount of overtime each potential class member 

worked. Rather, the court denied the motion because Plaintiffs failed to show that 

whether the potential class members—other than Plaintiffs—worked any overtime at all 

could be established through common proof. Plaintiffs‟ contention confuses the fact of 

damage with the amount of damages. As explained above, the fact of damage is a 

liability issue that focuses on the existence of harm establishing a plaintiff‟s entitlement

to damages; it is not concerned with the amount of damages. (Safeway, supra, 

238 Cal.App.4th at p. 1154.) At the hearing on Plaintiffs‟ motion, the court made clear it 

considered Plaintiffs‟ failure to show a classwide basis of establishing overtime work by 

potential class members was a liability issue, not a damages issue. 

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 evidence to show Tristar had a written or de facto policy requiring claims 

examiners to work overtime, or that the performance of overtime by claims examiners 

otherwise was subject to common proof. Plaintiffs presented their own declarations, but 

no declarations or testimony from any 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 that they worked 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 must accept the court‟s assessment of the 
16

evidence. (People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 

1561, 1567 [“„In determining whether there has been [an abuse of discretion], we cannot 

reweigh evidence or pass upon witness credibility. The trial court is the sole arbiter of 

such conflicts. Our role is to interpret the facts and to make all reasonable inferences in 

support of the order issued‟”].)

Plaintiffs presented evidence showing the standardized job description 

Tristar applied to claims examiners and the standardized procedures Tristar used to 

supervise its claims examiners. That evidence, however, is relevant to show whether the 

general supervision element of the administrative employee exemption is subject to 

common proof, not whether the existence of overtime work is subject to common proof. 

Plaintiffs contend the caseload of 150 to 180 cases identified in the claims examiner job 

description shows they had to work overtime to perform the job, but they presented no 

evidence to support that contention. As the trial court found, it cannot infer overtime 

work was required strictly from the number of cases assigned to claims examiners. 

Rather, to make that inference, the court explained it needed testimony from an industry 

expert opining that a claims examiner could not manage that number of cases without 

working overtime, or at least testimony from other claims examiners explaining they 

could not manage their caseloads without working overtime. As explained above, 

Plaintiffs provided no declarations from any claims examiners other than their own, and 

the court found their declarations were merely anecdotal with regard to overtime work. 

Essentially, the court concluded that the fact two people invariably worked overtime does 

not establish a class; we have no basis upon which to quarrel with that conclusion. 

Plaintiffs argue the alternative work schedules for many of the claims 

examiners demonstrated they routinely worked overtime by working more than eight 

hours in a day. Plaintiffs point to the claims examiner and supervisor declarations Tristar 

submitted stating that many claims examiners worked 8.33 or 8.5 hours each day under 

an alternative work schedule that allowed them to take every other Monday or Friday off. 
17

According to Plaintiffs, those alternative work schedules did not exempt Tristar from the 

statutory overtime requirements because Tristar failed to present evidence showing it 

followed the required procedures for establishing an exemption based on alternative work 

schedules. This evidence does not show the existence of overtime work was subject to 

common proof. 

Plaintiffs forfeited this argument by failing to make it in the trial court, and 

more importantly, their contention lacks merit because it relies on an entirely different 

liability theory. Plaintiffs‟ asserted class certification was appropriate because the 

caseload Tristar assigned all claims examiners generally required them to work overtime 

to manage their cases and Tristar intentionally misclassified all claims examiners as 

exempt administrative employees to avoid paying overtime compensation. Plaintiffs 

below did not base their claims on voluntarily working more than eight hours in a day 

under invalid alternative work schedules.

To support their contention the existence of overtime work by the potential 

class members is a damages issue that may not prevent class certification, Plaintiffs cite 

Bell. According to Plaintiffs, “[t]he Bell Court held that the purported variances in 

overtime was [an] improper legal criteri[on] for denial of class certification, even where it 

was undisputed that some of the class members did not work overtime.”3 Plaintiffs 

misconstrue Bell.

 

3

Plaintiffs‟ choice of the word “variances” in this statement demonstrates 

their misunderstanding of the court‟s ruling and the governing law. Simple variance in 

the amount of overtime class members worked, including some class members working 

no overtime, would be a damages issue that would not justify denying class certification. 

The court, however, did not simply find a variance in the amount of overtime worked. 

Rather, the court found Plaintiffs could not establish through evidence common to all 

class members Tristar had a generally applicable policy or practice that required claims 

examiners to work overtime. As explained above, such a generally applicable policy is 

what makes class treatment appropriate in wage and hour cases. (See Brinker, supra, 

53 Cal.4th at p. 1033; Dailey, supra, 214 Cal.App.4th at p. 98.)
18

In Bell, the plaintiffs were claims representatives employed by Farmers 

Insurance Exchange (Farmers). Like Plaintiffs, the plaintiffs in Bell claimed Farmers 

misclassified them as exempt administrative employees to avoid paying them overtime. 

After the trial court certified a class of claims representatives, Farmers moved to decertify 

the class based on discovery that revealed nine percent of a random sample of 295 class 

members did not claim they worked unpaid overtime. The trial court denied the motion 

and Farmers appealed. (Bell, supra, 115 Cal.App.4th at pp. 720-721.) 

In affirming the order, the Bell court concluded the existence of this 

marginal number of class members who did not claim injury did not significantly reduce 

the required community of interest because any individual adjudications these 

nonclaimants required related solely to damages, and the need for individual 

adjudications on damages did not prevent class certification. (Bell, supra, 

115 Cal.App.4th at pp. 743-744.) The court further explained, “[I]f proof of individual 

damages were required by all potentially affected parties as a condition for class 

certification, it would go far toward barring all class actions.” (Id. at p. 744.)

Bell does not apply here because it did not address the issue on which the 

trial court relied in denying Plaintiffs‟ class certification motion. As explained above, the 

court did not deny Plaintiffs‟ motion because they failed to show the number of overtime 

hours each potential class member worked; rather, the court denied the motion because 

Plaintiffs failed to present any evidence showing the question whether Tristar generally 

required all claims examiners to work overtime could be shown by common evidence 

that made class treatment of Plaintiffs‟ overtime claim appropriate. Unlike here, it was 

undisputed in Bell that the caseload Farmers assigned to its claim representatives 

generally required them to work overtime. (Bell, supra, 115 Cal.App.4th at pp. 722-725.) 

The existence of a small percentage that did not work overtime did not disprove the 

existence of a generally applicable policy or practice, and therefore did not affect class 

certification. 
19

Moreover, the trial court in Bell certified the class and denied the motion 

for class decertification based on its conclusion class treatment was appropriate. The 

governing standard of review required the Bell court to affirm that ruling unless there was 

a lack of substantial evidence to support it or a manifest abuse of discretion. (Bell, supra, 

115 Cal.App.4th at pp. 741-742.) Here, the trial court denied class certification, and 

therefore we must affirm that ruling if supported by substantial evidence. As explained 

above, substantial evidence supports the court‟s decision.

Plaintiffs also cite Williams v. Superior Court (2013) 221 Cal.App.4th 1353 

to support their contention the need to make individual damages determinations does not 

prevent class certification. Like Bell, Plaintiffs‟ reliance on Williams is misplaced 

because Williams did not involve a dispute over whether the existence of a policy 

requiring overtime work was subject to common proof. Unlike here, the evidence in 

Williams included numerous declarations from class members explaining their workload 

regularly required them to work more than eight hour a day and 40 hours a week. 

(Williams, at p. 1357.)

Finally, Plaintiffs contend the trial court was required to grant their motion 

because it found their theory of liability could be decided on a classwide basis. As 

explained above, in deciding whether common issues predominate, the trial court was 

required to consider whether plaintiff‟s theory of liability is likely to prove amenable to 

class treatment. (Brinker, supra, 53 Cal.4th at p. 1021.) According to Plaintiffs, “[their] 

theory of liability is that Plaintiffs and other class members were misclassified as 

„exempt‟ because Tristar cannot prove the „general supervision‟ prong of the administrate 

[employee] exemption.” Although the trial court found the general supervision prong of

the administrative employee exemption was appropriate for resolution on a classwide 

basis, that determination did not require the court to grant Plaintiffs‟ motion.

Plaintiffs‟ purported theory of liability is not a theory of liability at all. As 

explained above, exemptions from the statutory overtime requirements are affirmative 
20

defenses on which the employer bears the burden of proof. The failure of an affirmative 

defense may not give rise to liability unless the plaintiff first establishes an underlying 

basis for liability. Here, the underlying basis for liability is Tristar‟s alleged failure to 

pay class members for their overtime work. Only after Plaintiffs make that showing may

the court or jury reach the question whether Tristar misclassified the class members as 

exempt. Plaintiffs‟ theory of liability therefore is actually a theory that Tristar‟s defense 

fails, and the suitability of that defense to class treatment did not require the court to 

grant Plaintiffs‟ motion without a showing there also was a liability theory that was 

suitable to class treatment. 

Based on our conclusion the trial court did not err in denying Plaintiffs‟ 

motion because Plaintiffs failed to establish that common issues predominated on their 

overtime claims, we need not address the court‟s additional finding that class treatment 

was inappropriate because Plaintiffs failed to show their claims were typical of the 

proposed class. We simply note much of the foregoing analysis is applicable to the 

court‟s typicality finding, and as explained above, typicality examines whether all class 

members suffered the same or similar injuries, whether the class representatives‟ claims 

are based on conduct that is not unique to them, and whether all class members have been 

injured by the same course of conduct. (Martinez, supra, 231 Cal.App.4th at p. 375.) 

2. The UCL Claim

Plaintiffs contend the trial court also erred by applying an improper legal 

criterion in denying their class certification motion on the UCL claim. According to 

Plaintiffs, their purported failure to present evidence showing the amount of overtime 

worked by each putative class members was an improper basis for denying their motion 

because “proof of injury as to the individual class members can never preclude [class] 

certification of a UCL claim as a matter of settled California law.” Plaintiffs again 

misconstrue the governing law and the trial court‟s ruling.
21

“„The UCL defines unfair competition as “any unlawful, unfair or 

fraudulent business act or practice. . . .” [Citation.] Therefore, under the statute “there 

are three varieties of unfair competition: practices which are unlawful, unfair or 

fraudulent.” [Citation.]‟ [Citation.] If a defendant is found to have engaged in any of the 

three varieties of unfair competition, „[t]he court may make such orders or judgments . . . 

as may be necessary to prevent the use or employment by any person of any practice 

which constitutes unfair competition, . . . or as may be necessary to restore to any person 

in interest any money or property, real or personal, which may have been acquired by 

means of such unfair competition.‟ [Citation.] The focus of the UCL is „on the 

defendant‟s conduct, rather than the plaintiff‟s damages, in service of the statute‟s larger 

purpose of protecting the general public against unscrupulous business practices.‟” 

(Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145, 154 (Steroid Cases).)

To advance that purpose, the UCL previously “„authorized any person 

acting for the general public to sue for relief from unfair competition.‟” (In re Tobacco II 

Cases (2009) 46 Cal.4th 298, 314 (Tobacco II).) Based on the UCL‟s broad language, 

“California courts consistently held that liability for restitution under the UCL could be 

imposed against a defendant without any individualized proof of causation or injury; the 

plaintiff needed only to show that the defendant engaged in a practice that was unlawful, 

unfair, or fraudulent and that the defendant may have acquired money or property by 

means of that practice.” (Steroid Cases, supra, 181 Cal.App.4th at p. 154; see 

Tobacco II, at p. 314 [“„Standing to bring such an action did not depend on a showing of 

injury or damage‟”].)

In 2004, the electorate changed this broad standing rule under the UCL by 

approving Proposition 64, which “amended the UCL to provide that a private action for 

relief may be maintained only if the person bringing the action „has suffered injury in fact 

and has lost money or property as a result of the unfair competition.‟” (Steroid Cases, 

supra, 181 Cal.App.4th at p. 154.) Proposition 64 also amended the UCL to “explicitly 
22

mandate[] that a representative UCL action [must] comply with Code of Civil Procedure 

section 382[, the statutory provision governing class actions].” (Tobacco II, supra, 

46 Cal.4th at p. 314.)

“Questions arose as to the effect of the Proposition 64 amendments on UCL 

class actions, particularly whether each class member must now establish that he or she 

suffered injury in fact and lost money as a result of the unfair competition. The 

California Supreme Court answered this question in Tobacco II, concluding that the 

standing provision added by Proposition 64 „was not intended to have any effect at all on 

unnamed members of UCL class actions.‟ [Citation.] Therefore, while a named plaintiff 

in a UCL class action now must show that he or she suffered injury in fact and lost 

money or property as a result of the unfair competition, once the named plaintiff meets 

that burden, no further individualized proof of injury or causation is required to impose 

restitution liability against the defendant in favor of absent class members.” (Steroid 

Cases, supra, 181 Cal.App.4th at p. 154; see Tobacco II, supra, 46 Cal.4th at 

pp. 320-321.)

Tobacco II, the Steroid Cases, and the other cases Plaintiffs cite address 

standing requirements to bring an unfair competition claim under the UCL, including a 

class action claim. (Tobacco II, supra, 46 Cal.4th at p. 306; Steroid Cases, supra, 

181 Cal.App.4th at pp. 154-155; see Bank of the West v. Superior Court (1992) 2 Cal.4th 

1254, 1267; Prata v. Superior Court (2001) 91 Cal.App.4th 1128, 1144; State Farm Fire 

& Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1105, disapproved on 

other grounds in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.

(1999) 20 Cal.4th 163, 184-185.) Neither these cases nor Proposition 64, however, 

changed what a class proponent must show to certify a class on a UCL claim. 

(Tobacco II, at pp. 313, 319.) To bring a class action claim under the UCL, the 

representative plaintiff must establish he or she has standing under the UCL, as amended 

by Proposition 64, and that all of the foregoing requirements for a class action are 
23

satisfied, including that common issues of fact or law predominate and that the 

representative‟s claim is typical of the class. (Tobacco II, at p. 319.)

Indeed, subsequent appellate decisions have concluded Tobacco II is 

“irrelevant” to a class certification motion “because the issue of „standing‟ simply is not 

the same thing as the issue of „commonality.‟ Standing, generally speaking, is a matter 

addressed to the trial court‟s jurisdiction because a plaintiff who lacks standing cannot 

state a valid cause of action. [Citations.] Commonality, on the other hand, and in the 

context of the class certification issue, is a matter addressed to the practicalities and 

utilities of litigating a class action in the trial court. We see no language in Tobacco II

that suggests to us the Supreme Court intended our state‟s trial courts to dispatch with an 

examination of commonality when addressing a motion for class certification. On the 

contrary, the Supreme Court reiterated the requirements for maintenance of a class action, 

including (1) an ascertainable class and (2) a „“community of interests”‟ shared by the 

class members.” (Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966, 981; see 

Davis-Miller v. Automobile Club of Southern California (2011) 201 Cal.App.4th 106, 

124; Steroid Cases, supra, 181 Cal.App.4th at p. 158.)

As explained above, and contrary to Plaintiffs‟ contention, the trial court 

did not deny Plaintiffs‟ class certification motion based on their failure to present 

individualized proof of injury by each potential class member. Rather, the court denied 

the motion because Plaintiffs failed to satisfy the commonality requirement by presenting 

evidence to show they could establish through common proof that Tristar required claims 

examiners to work overtime. Substantial evidence supports that finding and it is 

consistent with the governing legal standards.
24

III

DISPOSITION

The order is affirmed. Tristar shall recover its costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.
Filed 7/26/2017

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

VALERIE KIZER et al.,

 Plaintiffs and Appellants,

v.

TRISTAR RISK MANAGEMENT,

 Defendant and Respondent.

G052558

(Super. Ct. No. 30-2014-00707394)

ORDER MODIFYING OPINION 

AND CERTIFYING OPINION FOR 

PUBLICATION; NO CHANGE IN 

JUDGMENT

It is ordered that the opinion filed in the above-entitled matter on June 26, 

2017, is hereby MODIFIED as follows:

1. On page 2, the second sentence of the last paragraph, beginning with 

“Rather, the court denied,” delete the word “that” between the words “failed to show” 

and “whether the putative class members” so the sentence reads:

Rather, the court denied the motion because Plaintiffs failed to show 

whether the putative class members worked any overtime at all was subject 

to common proof. 
2

2. On page 2, the third sentence of the last paragraph, beginning with 

“To satisfy the commonality requirement,” insert the words “they could establish” 

between the words “required to show” and “their liability theory,” and delete the words 

“could be established” after the words “their liability theory” so the sentence reads:

To satisfy the commonality requirement for class certification, Plaintiffs 

were required to show they could establish their liability theory on a 

classwide basis through common proof.

3. On page 3, the second sentence of the first full paragraph, beginning 

with “According to Plaintiffs,” delete the apostrophe from the word “Plaintiffs‟” found 

between the words “therefore” and “were not required,” delete the words “of overtime” 

between the words “amount” and “each putative class member,” and insert the word 

“overtime” between the words “evidence of the” and “amount” so the sentence reads:

According to Plaintiffs, the UCL authorizes restitution and other relief 

without a showing that each class member individually suffered injury, and 

therefore Plaintiffs were not required to present evidence of the overtime 

amount each putative class member worked. 

4. On page 4, the third sentence of the second paragraph, beginning 

with “According to Plaintiffs,” delete the words “based on the exempt classification it 

applied to its claims examiners” at the end of the sentence and replace them with the 

words “because it classified them as exempt under California law” so the sentence reads:

According to Plaintiffs, Tristar required its claims examiners to work more 

than eight hours a day and 40 hours per workweek, but paid no overtime 

because it classified them as exempt under California law. 

5. On page 6, the third sentence of the second paragraph, beginning 

with “Plaintiffs represented,” delete the word “represented” at the beginning of the 

sentence and replace it with the word “asserted” so the sentence reads:
3

Plaintiffs asserted they could defeat the general supervision element by 

presenting classwide evidence regarding Tristar‟s generally applicable 

policies and procedures governing claims examiners and their work. 

6. On page 7, the second sentence of the first full paragraph, beginning 

with “According to the court,” delete the word “the” between the words “could not 

complete” and “workload” and replace it with the word “Tristar‟s,” delete the word 

“Tristar” following the word “workload,” and delete the word “assigned” and replace it 

with the word “assignments” so the sentence reads:

According to the court, 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. 

7. On page 13, the third sentence of the first full paragraph, beginning 

with “Establishing a uniform policy,” delete the words “Establishing a” at the beginning 

of the sentence and replace them with the words “Evidence of an employer‟s,” and delete 

the words “that an employer consistently applied” following the words “uniform policy” 

so the sentence reads:

Evidence of an employer‟s uniform policy to misclassify a group of 

employees as exempt from overtime requirements is not sufficient to 

support class certification because misclassification alone does not establish 

liability for overtime violations. 

8. On page 15, the second sentence of the first paragraph, beginning 

with “Rather, the court denied,” delete the words “that whether” between the words 

“failed to show” and “the potential class members” and replace them with the words 
4

“they could establish through common proof that,” and delete the words “at all could be 

established through common proof” at the end of the sentence so the sentence reads:

Rather, the court denied the motion because Plaintiffs failed to show they 

could establish through common proof that the potential class members—

other than Plaintiffs—worked any overtime. 

9. On page 15, third sentence of the second paragraph, beginning with 

“Plaintiffs presented their own declarations,” insert the word “other” between the words 

“testimony from any” and “claims examiners” so the sentence reads:

Plaintiffs presented their own declarations, but no declarations or testimony 

from any other claims examiners. 

10. On page 15, last sentence of the second paragraph, beginning with 

“We must accept,” delete the words “must accept” at the beginning of the sentence and 

replace them with the words “are in no position to second guess” so the sentence reads:

We are in no position to second guess the court‟s assessment of the 

evidence.

11. On page 16, the sixth sentence of the first full paragraph, beginning 

with “As explained above,” delete the words “with regard to overtime work” at the end of 

the sentence so the sentence reads:

As explained above, Plaintiffs provided no declarations from any claims 

examiners other than their own, and the court found their declarations were 

merely anecdotal. 

12. On page 18, the second sentence of the third paragraph, beginning 

with “As explained above,” delete the words “denied the motion” between the words 

“rather, the court” and “because Plaintiffs failed” and replace them with the words 

“concluded class treatment was not appropriate,” delete the words “present any evidence 

showing the question whether” following the words “Plaintiffs failed to” and replace 

them with the words “show they could prove through common evidence that,” and delete 
5

the words “could be shown by common evidence that made class treatment of Plaintiffs‟ 

overtime claim appropriate” at the end of the sentence so the sentence reads:

As explained above, the court did not deny Plaintiffs‟ motion because they 

failed to show the number of overtime hours each potential class member 

worked; rather, the court concluded class treatment was not appropriate 

because Plaintiffs failed to show they could prove through common 

evidence that Tristar generally required all claims examiners to work 

overtime. 

13. On page 19, the last sentence of the second paragraph, beginning 

with “Unlike here,” delete the word “hour” between the words “more than eight” and “a 

day” and replace it with the word “hours” so the sentence reads:

Unlike here, the evidence in Williams included numerous declarations from 

class members explaining their workload regularly required them to work 

more than eight hours a day and 40 hours a week.

14. On page 19, the second sentence of the third paragraph, beginning 

with “As explained above,” delete the words “was required to” between the words “the 

trial court” and “consider whether” and replace them with the word “must” so the 

sentence reads:

As explained above, in deciding whether common issues predominate, the 

trial court must consider whether plaintiff‟s theory of liability is likely to 

prove amenable to class treatment. 

15. On page 20, the first full sentence at the top of the page, beginning 

with “The failure of an affirmative defense,” delete the entire sentence and replace it with 

the following sentence:

A plaintiff must first establish an underlying basis for liability before 

affirmative defenses are considered. 
6

16. On page 20, the third full sentence at the top of the page, beginning 

with “Only after plaintiffs make,” delete the words “court or jury” between the words 

“showing may the” and “reach the question” and replace them with the words “fact 

finder” so the sentence reads:

Only after Plaintiffs make that showing may the fact finder reach the 

question whether Tristar misclassified the class members as exempt.

These modifications do not change the judgment.

The Employers Group and the California Employment Law Council have

requested that we certify our opinion for publication. It appears that our opinion meets 

the standards set forth in California Rules of Court, rule 8.1105(c). The request is 

GRANTED. 

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

___________________________

THOMPSON, J.