1

Filed 12/31/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANK KOVAL et al.,

Plaintiffs and Appellants,

v.

PACIFIC BELL TELEPHONE CO., 

Defendant and Respondent.

 A139570

 (Alameda County

 Super. Ct. No. JCCP004637)

INTRODUCTION

Plaintiffs Frank Koval, Mike Williams, Vanmark Strickland, and Donald 

Washington filed this consolidated class action lawsuit against their employer, defendant

Pacific Bell Telephone Company (d.b.a. AT&T California) (Pacific Bell). They alleged 

Pacific Bell violated California law by failing to relinquish control over their activities

during meal and rest break periods, and moved for class certification. Relying, in part, on 

Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), the trial 

court concluded plaintiffs failed to show Pacific Bell’s allegedly restrictive policies had 

been consistently applied to the putative class members. The court denied class 

certification on the ground that common questions do not predominate over individual 

questions, making the class action procedure an inappropriate method for resolving this

dispute. We affirm. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Background

Pacific Bell is a telecommunications company providing wireline local telephone 

service, as well as digital television and Internet service, to residential, business, and 
2

governmental customers throughout much of the state of California. Named plaintiffs 

Koval, Williams, Strickland, and Washington are or were hourly nonexempt field 

technicians employed at one or more of Pacific Bell’s regional operations. 

State law obligates employers to afford their nonexempt employees meal periods 

and rest periods during the workday. (See Lab. Code, §§ 226.7, 512; Cal. Code Regs., tit. 

8, § 11040 (Industrial Wage Commission (IWC), wage order no. 4-2001)(Wage Order 

No. 4).)1 Labor Code section 226.7, subdivision (b)

2

prohibits an employer from 

requiring an employee “to work during a meal or rest period . . . mandated pursuant to an 

applicable . . . order of the Industrial Welfare Commission . . . .” In turn, Wage Order 

No. 4, subdivision 12 prescribes rest periods, while subdivision 11, as well as section 512 

of the Labor Code, prescribes meal periods. Employers who violate these requirements 

must pay premium wages. (§ 226.7, subd. (c); Wage Order No. 4, subds. 11(B), 12(B); 

see Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1113-1114

(Murphy).)

II. Commencement of Action

On February 16, 2010, plaintiff Washington filed a putative class action against 

Pacific Bell in the Superior Court, County of Los Angeles, seeking to represent “all 

service technicians” employed by Pacific Bell. Among his claims, the complaint alleged 

failure to provide meal and rest break periods or to pay compensation in lieu thereof. 

 

1

The IWC “is the state agency empowered to formulate wage orders governing 

employment in California. [Citation.] The Legislature defunded the IWC in 2004, 

however its wage orders remain in effect.” (Murphy, supra, 40 Cal.4th at p. 1102, fn. 4.) 

IWC wage order no. 4-2001 (Wage Order No. 4), which covers technical and mechanical 

occupations, applies here. (Cal. Code Regs., tit. 8, § 11040, subd. 2(O).)

2 All further statutory references are to the Labor Code unless otherwise specified.
3

On April 20, 2010, plaintiffs Koval, Strickland, and Williams, along with Kenesha 

Mayfield and Frank Manibusan, filed a similar putative class action in the Superior 

Court, County of Alameda.

3

 

On September 28, 2010, the Los Angeles and Alameda County actions were 

ordered consolidated. 

On January 25, 2011, the trial court issued an order allowing plaintiffs to file a 

consolidated amended class action complaint. 

On November 1, 2011, plaintiffs filed a second consolidated amended class action 

complaint. 

On October 12, 2012, plaintiffs filed a third consolidated amended class action 

complaint. This is the operative complaint for purposes of this appeal. In the complaint, 

plaintiffs purport to represent all individuals employed by Pacific Bell in nonexempt field 

personnel classifications, such as service technicians, systems technicians, cable locators,

and splicing technicians, from February 16, 2006 through the date of judgment. The 

complaint alleges the following causes of action: (1) failure to provide meal periods, (2) 

failure to provide rest breaks, (3) failure to pay wages at overtime rate, (4) failure to 

provide accurate itemized wage statements, (5) failure to timely pay wages due at 

termination, (6) violation of unfair competition law (Bus. & Prof. Code, § 17200 et seq., 

hereafter UCL), and (7) enforcement of the Private Attorneys General Act of 2004

(PAGA). 

III. Motion for Class Certification

On July 16, 2012, plaintiffs filed a motion for class certification under Code of 

Civil Procedure section 382. In addition to certification of the class of nonexempt field 

personnel, plaintiffs sought authorization for two subclasses: one for waiting-time 

 

3 Mayfield and Manibusan were voluntarily dismissed as named plaintiffs on July 1, 

2011. 
4

penalties and another for itemized-wage-statement and PAGA penalties.4Plaintiffs 

focused on Pacific Bell’s written job performance guidelines, which they claimed contain 

several explicit restrictions on how employees could spend their meal and rest periods. 

By imposing these restrictions, Pacific Bell allegedly failed to release the employees 

from the company’s control during their breaks.5

In support of their certification motion, plaintiffs submitted copies of 13 

documents they referred to collectively as “Job Performance Policies and Expectations” 

(JPPE’s). The documents – bearing titles such as “Local Field Operations (“LFO”)-Out 

Standards,” “Roles and Responsibilities For Systems Technicians,” and “Business

Service Operations-Job Standards” – are regional field operations manuals that were in 

effect at various times. These documents collectively contain hundreds of guidelines and 

best practices regarding field technician job duties. From these manuals, plaintiffs 

extracted seven allegedly restrictive guidelines.6 Six guidelines purportedly impacted

technicians’ autonomy during meal periods, while one applied to rest breaks only. 

Plaintiffs asserted these guidelines, among other things, converted them and their fellow

class members into “de facto security guards for their company vehicles during their 

breaks,” thereby failing to relieve them of all work-related duties. 

In brief, six guidelines allegedly prohibited employees on meal breaks from: 

(1) meeting up with their colleagues (“no ganging up”), (2) going to their personal 

residences, (3) leaving their trucks (“abandonment”), (4) riding in other vehicles, (5) 

sleeping in trucks, or (6) driving their trucks outside normal work routes to get a meal

 

4

The putative class is estimated to include approximately 6,700 current and former 

employees.

5 California Code of Regulations, title 8, section 11090, subdivision (2)(G) provides: 

“ ‘Hours worked’ means the time during which an employee is subject to the control of 

an employer, and includes all the time the employee is suffered or permitted to work, 

whether or not required to do so.” 

6 Not all of the various field operations manuals contain all seven of the targeted 

guidelines. The manuals were consolidated into a single set of JPPE’s in 2008. 
5

(“out-of-route rule”). While exceptions could be made to some of these restrictions, 

deviations had to be noted on the employee’s timesheet with the name of the manager 

who approved the deviation. A seventh policy provided that employees were not allowed 

to take rest breaks at coffee shops or restaurants. 

It is undisputed that Pacific Bell has facially compliant meal and rest break period 

policies. Because Pacific Bell’s official meal-period policies are facially valid, the issue 

here is whether other systematic company guidelines prevented employees from fully 

realizing the breaks to which they were entitled. Plaintiffs supported their assertions with 

declarations from 76 class members. Each described how they became aware of the 

JPPE’s and how the policies impacted their meal and rest breaks. Plaintiffs also included 

deposition testimony from James Beck, who was designated as Pacific Bell’s most 

knowledgeable person with regard to the policies at issue, as well as testimony from other 

management-level employees. 

Beck testified that field employees are expected to adhere to the expectations 

contained in the JPPE’s. Failure to do so can result in disciplinary action up to, and 

including, dismissal. He acknowledged that between 2006 and 2010, field technicians 

were prohibited from going out of route without management approval, including during 

their meal and rest periods. Employees were also instructed not to leave their vehicles to 

ride in a separate vehicle to another location during their breaks. He confirmed the policy 

prohibiting employees from “ganging up” applied during meal periods. 

On October 12, 2012, Pacific Bell filed its opposition to the motion for class 

certification. The company asserted there were no uniform written rules restricting its 

employees’ meal-time activities. Instead, plaintiffs’ allegations rested entirely on the oral 

instructions that were given to them by their individual supervisors. It further argued that

its liability, if any, “could flow only from a supervisor’s misinterpretation of written rules 

or exercise of discretion.” It claimed individualized inquiries would thus be needed to 

determine which oral instructions had been given to each putative class member. It 
6

supported its argument with deposition excerpts from several putative plaintiffs. For 

example, some technicians stated they were never told to stay with company vehicles

during lunch. Supervisors had also provided highly variable instructions regarding 

whether field personnel could go home at lunch, with some prohibiting the practice and 

others allowing it. Others allowed it only if the employee’s home was in route or if he or 

she obtained prior permission. Pacific Bell also offered a declaration of Beck, in which 

he stated that supervisors had discretion over whether to make exceptions to the JPPE’s.

7

 

Pacific Bell concluded that determining whether the policies were so restrictive as to 

have transformed break time into work time would necessitate individualized inquires. 

Following a hearing, the trial court found the proposed class and subclasses to be 

both ascertainable and sufficiently large. The court observed, under the leading case of 

Brinker, supra, the relevant inquiry as to commonality could be analyzed by examining

whether the disputed workplace policies were both uniform and consistently applied. 

The court noted plaintiffs had submitted 13 different versions of Pacific Bell manuals that 

had been in force at various times during the proposed class period. Notwithstanding this 

diversity, the court determined the language in the various manuals and documents, while 

somewhat inconsistent, could be deemed substantially similar so as to satisfy the 

“uniform policy” standard for class certification. The trial court reasoned that minor 

dissimilarities in the policies governing particular class members could potentially be 

addressed by subclassing. 

However, as to the second inquiry under Brinker, the trial court concluded the 

evidence revealed the policies had not been consistently applied: “What is important, and 

 

7 Beck asserted the following passage, which appears in many of the guidelines, gives 

supervisors “the discretion to interpret and apply the guidelines and to develop local 

standards: [¶] In addition to the standards outlined in this document, all employees have

standards, policies, and expectations that have been developed and deployed by 

their local management teams. Generally, these policies add to the expectations in this 

document and are not in conflict with them. However, the circumstance where local 

policy and/or agreements are in direct conflict with expectations in this document, 

employees are guided appropriately.” (Emphasis in declaration.) 
7

ultimately fatal to Plaintiffs’ bid for class certification, is the manner in which the six 

rules reflected in the written materials were applied, and that in turn begins with the 

question of how the rules were communicated.” Specifically, the evidence showed these

policies were disseminated orally by line supervisors in ways that varied widely, creating 

“serious doubt . . . as to whether the rules were consistently applied so as to allow 

adjudication of the liability issues on a class-wide basis.”

8

For this reason, the court 

denied class certification. This appeal followed.

DISCUSSION

We briefly revisit the legal requirements for certification of a class action and then 

examine plaintiffs’ contentions.

I. Class Action Certification and Standard of Review

The certification question is “essentially a procedural one that does not ask 

whether an action is legally or factually meritorious.” (Linder v. Thrifty Oil Co. (2000) 

23 Cal.4th 429, 439-440.) “A trial court ruling on a certification motion determines 

‘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.’ ” (Sav-On 

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

seeking class certification must show “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.” (Brinker, 

supra, 53 Cal.4th at p. 1021; see Code Civ. Proc., § 382.) 

The community-of-interest requirement comprises three factors: predominant 

common questions of law or fact; class representatives with claims or defenses typical of 

 

8

For example, plaintiff Washington understood the “out-of-route rule” prohibited going 

over a mile off route, but had also heard it meant not going to a different town. Other 

workers understood that they could go out of route to find food, or could do so with 

management approval. 
8

the class; and class representatives who can adequately represent the class. (Brinker, 

supra, 53 Cal.4th at p. 1021.) In this appeal, the sole issue is whether plaintiffs 

established the element of predominance of common questions. This element requires, 

essentially, that factual and legal questions common to the claims of the putative class 

members predominate over issues affecting members individually. Generally, “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.” (Id.

at p. 1022.) To determine the issue, the trial court “must examine the plaintiff’s theory of 

recovery, assess the nature of the legal and factual disputes likely to be presented, and 

decide whether individual or common issues predominate.” (Id. at p. 1025.)

Whether to certify a class rests within the broad discretion of the trial court. 

(Brinker, supra, 53 Cal.4th at p. 1022.) Generally, an order denying certification will not 

be disturbed unless it: (1) is unsupported by substantial evidence, (2) rests on improper 

criteria, or (3) rests on erroneous legal assumptions. (Id. at p. 1022.) 

II. Meal and Rest-Break Law Under Brinker

In Brinker, the California Supreme Court clarified that an employer is required to 

make uninterrupted meal periods and rest breaks available to its employees, but is not 

obligated to ensure that they are taken.9(Brinker, supra, 53 Cal.4th at pp. 1034, 1040–

1041.) The court summarized its holding as follows: “An employer’s duty with respect 

to meal breaks . . . is an obligation to provide a meal period to its employees. The 

employer satisfies this obligation if it relieves its employees of all duty, relinquishes 

control over their activities and permits them a reasonable opportunity to take an 

uninterrupted 30-minute break, and does not impede or discourage them from doing so. 

 

9

Previously, the Supreme Court had held that an employer may be found liable even 

when it makes rest and meal breaks available to nonexempt employees if it also requires 

them to be available for work during those periods. (See Murphy, supra, 40 Cal.4th 1094

at p. 1104 [requirement to provide rest and meal periods implies that employee will “be 

free of the employer’s control during the meal period”].) 
9

What will suffice may vary from industry to industry, and we cannot in the context of this 

class certification proceeding delineate the full range of approaches that in each instance 

might be sufficient to satisfy the law.” (Brinker, supra, 53 Cal.4th at p. 1040.) 

In the course of its ruling, the Brinker court stated: “Claims alleging that a uniform 

policy consistently applied to a group of employees is in violation of the wage and hour 

laws are of the sort routinely, and properly, found suitable for class treatment.” (Brinker, 

supra, 53 Cal.4th at p. 1033, italics added.) In support of this statement, the court cited 

three Court of Appeal cases: Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286 

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

and Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 (Bufil). In all 

three cases the appellate courts concluded the lower courts had abused their discretion by 

denying class certification. (Jaimez, supra, at pp. 1299-1307; Ghazaryan, supra, at pp. 

1534-1538; Bufil, supra, at pp. 1205-1206.) These opinions reasoned that the plaintiffs 

were challenging uniform employment policies that allegedly violated California law 

and, therefore, the violations could be proved (or disproved) through common facts and 

law. (Jaimez, supra, at pp. 1299-1300; Ghazaryan, supra, at pp. 1536-1538; Bufil, supra,

at p. 1206.) The courts in Jaimez and Ghazaryan also concluded common issues can 

predominate even if damages must be proved individually. (Jaimez, supra, at pp. 1300-

1301, 1303-1305; Ghazaryan, supra, at pp. 1536-1537.)

III. The Trial Court Applied the Correct Legal Standard

In their motion for certification, plaintiffs argued that the JPPE’s were uniform 

policies governing all California field personnel. Their memorandum of points and 

authorities highlights the same “uniform policy consistently applied” language from the 

Brinker case that the trial court used to craft its two-step analysis. Thus, they essentially 

invited the court to use this language as the framework for its decision. While plaintiffs 

did not assert that Brinker had created a two-part test, we do not perceive that the trial 

court here treated the passage from Brinker as such. 
10

It is true that the Brinker court observed “a uniform policy consistently applied” 

can support certification. (Brinker, supra, 53 Cal.4th at p. 1033.) But it did not say that a 

case must proceed as a class action when there is such a facially uniform policy. Brinker 

simply points out that class treatment can be appropriate in a wage-and-hour case 

involving a uniform policy, especially one that is being applied consistently. We also 

disagree with plaintiffs’ contention that the trial court’s ruling “necessarily rested on its 

merits determination that a legally material distinction exists among the JPPEs . . . .” 

Rather than making a determination on the merits, the court made a determination that 

the merits cannot be determined on a classwide basis. As we will discuss, this finding 

was well within the permissible bounds of the court’s discretion. 

IV. There Was No Abuse of Discretion

Plaintiffs assert the court “committed legal error by rewriting [their] theory of 

liability” and imputing from Brinker a requirement that they introduce facts showing 

“both uniform policies and consistent application of those policies” in order to find that 

common issues predominate for purposes of class certification. (Italics added.) They 

contend their theory of liability requires only a showing of the existence of a uniform 

policy that conflicted with Pacific Bell’s obligation to provide them with duty-free 

breaks. They claim a trial court’s inquiry at the certification stage should be on the 

moving party’s asserted theory of liability, rather than on how the allegedly unlawful 

policies were implemented. 

We conclude the trial court here did not misapply Brinker. As to certification, 

Brinker summarized the governing principles as follows: “Presented with a class 

certification motion, a trial court must examine the plaintiff’s theory of recovery, assess 

the nature of the legal and factual disputes likely to be presented, and decide whether 

individual or common issues predominate.” (Brinker, supra, at p. 1025.) In the present 

case, the trial court simply made a determination as to whether plaintiffs’ action, overall, 

is amenable to class treatment. Recent appellate decisions show that the existence of a 
11

uniform policy does not limit a trial court’s inquiry into whether class action treatment is 

appropriate in meal and rest-break cases. 

In Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278 (Hall), the appellate court 

described its view of post-Brinker developments: “Subsequent cases have concluded, 

considering Brinker, that when a court is considering the issue of class certification and is 

assessing whether common issues predominate over individual issues, the court must 

‘focus on the policy itself’ and address whether the plaintiff’s theory as to the illegality 

of the policy can be resolved on a classwide basis. [Citations.] Those courts have also 

agreed that, where the theory of liability asserts the employer’s uniform policy violates 

California’s labor laws, factual distinctions among whether or how employees were or 

were not adversely impacted by the allegedly illegal policy does not preclude

certification. [Citation.]” (Hall, supra, 226 Cal.App.4th at p. 289, italics added.)10 

In Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701

(Benton), also relied on by plaintiffs, the appellate court considered whether a proposed 

class of cell phone tower technicians asserting meal and rest break violations could 

establish the employer’s liability through common proof. In that case, the employer,

Telecom Network Specialists (TNS), provided personnel services to the 

telecommunications industry by hiring employees directly or by retaining them through 

staffing agencies. (Id. at p. 705.) The plaintiff, a contractor technician, alleged TNS had 

failed to ensure its staffing agencies complied with wage and hour laws and sought to 

certify a class of contractor technicians. The complaints alleged there were “ ‘numerous 

questions of law and fact common to the [class],’ including, in part: ‘[w]hether TNS was 

the employer of the [c]lass [m]embers’; ‘[w]hether TNS provided meal [and rest] breaks 

in accordance with California law’; and ‘[w]hether the [c]lass [m]embers were denied 

 

10 We observe, just as these factual distinctions do not preclude certification, the 

existence of a uniform policy does not necessarily mandate certification. Each case must 

be addressed on its own unique facts.
12

premium wages for overtime worked in violation of California law.’ ” (Benton, supra,

220 Cal.App.4th at p. 706.) The trial court denied the motion for certification based on 

its finding that the technicians were governed by a wide range of staffing company 

management policies and worked in diverse workplace environments. (Id. at pp. 714-

715.) 

In keeping with the Supreme Court’s rationale in Brinker, the Court of Appeal 

reversed the trial court’s order denying class certification. (Benton, supra, 220 

Cal.App.4th at p. 731.) Quoting another post-Brinker decision (Faulkinbury v. Boyd & 

Associates, Inc. (2013) 216 Cal.App.4th 220, 235 (Faulkinbury)), the Benton court stated, 

“ ‘the employer’s liability arises by adopting a uniform policy that violates the wage and 

hour laws. Whether or not the employee was able to take the required break goes to 

damages, and “[t]he fact that individual [employees] may have different damages does 

not require denial of the class certification motion.” ’ ” (Benton, supra, 220 Cal.App.4th

at p. 726; see also Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 

1151 (Bradley) [“[u]nder the logic of [Brinker], when an employer has not authorized and 

not provided legally required meal and/or rest breaks, the employer has violated the law 

and the fact that an employee may have actually taken a break or was able to [take a 

break] during the workday does not show that individual issues will predominate in the 

litigation”].) 

Notably, the appellate court did not hold that certification is required in all cases 

involving allegedly uniform policies. Instead, the opinion held that the lower court had 

erred in “fail[ing] to evaluate whether plaintiffs’ theory of recovery could be proved (or 

disproved) through common facts and law.” (Benton, supra, 220 Cal.App.4th at p. 731, 

italics added.) Further, we note that, in spite of this error, the appellate court did not 

order the trial court to certify the matter as a class action. Instead, the case was remanded 

for reconsideration: “Although the reasons set forth in the trial court’s written order do 

not provide a sufficient basis for denying class certification, the record demonstrates that 
13

TNS raised additional arguments which the court did not address.” (Ibid.) Thus, the 

existence of a uniform policy is not the sole deciding factor in a certification analysis. 

Plaintiffs assert their “theory of liability” is that Pacific Bell’s policies, as written, 

fail to comply with California law on their face. While Pacific Bell maintained written 

policies that are uniform, in the sense that they are in writing, the evidence supports the 

trial court’s conclusion that supervisors did not consistently articulate these policies to 

class members. Instead, substantial evidence supports the court’s finding that each 

supervisor conveyed the policies to class members orally, a practice which the evidence 

also shows resulted in diverse practices and differing interpretations as to what the rules 

required. In this sense, the policies are far from uniform. We agree with the court that 

this management practice, combined with the confusing overlay of policy manuals 

containing different combinations of rules that were applicable to the various job 

classifications at different times, creates a shifting kaleidoscope of liability 

determinations that render this case unsuitable for class action treatment. 

The present case is more similar to Morgan v. Wet Seal, Inc. (2012) 210 

Cal.App.4th 1341 (Morgan), on which Pacific Bell relies. In that case, the plaintiffs 

alleged that the employer required employees to purchase company clothing to wear for 

work. (Id. at p. 1344.) They sought certification due to the employer’s failures to 

reimburse employees for such expenses. (Id. at p. 1345.) The employer’s written 

company policy stated that employees were not required to purchase company clothing as 

a condition of employment. (Id. at pp. 1347-1349.) Consequently, the plaintiffs’ motion 

relied on what managers told employees in person, through e-mail, and through other 

communications as proof that the clothing requirement existed. (Id. at pp. 1350-1353.) 

Without a clear company policy, the appellate court concluded there was no common 

method to prove classwide liability because each individual plaintiff would have his or 

her own story and individual interpretation of what he or she had been told. (Ibid.) Here, 

while Pacific Bell’s written policies were expressly stated, substantial evidence supports 
14

the trial court’s conclusion that the manner in which the policies were communicated to 

class members was extremely variable.

11

 

Thus, the instant case is distinguishable from Ghazaryan, supra, and Jaimez,

supra. In both cases, the plaintiffs produced substantial evidence of a company-wide

employment policy. The core liability issue was whether that policy was legal or not. 

(Ghazaryan, supra, 169 Cal.App.4th at p. 1536; Jaimez, supra, 181 Cal.App.4th at pp. 

1299-1301.) The appellate courts in both cases noted that declarations describing 

possible individual variations in the application of the policy could be relevant to the 

secondary issue of damages, but that damages issue did not predominate over the 

common issue regarding the legality of the policy itself. (Ghazaryan, supra, 169 

Cal.App.4th at pp. 1529-1530; Jaimez, supra, 181 Cal.App.4th at pp. 1300-1301.) In 

distinguishing these two cases, the court in Morgan made the following observation: 

“Here, by contrast, plaintiffs produced declaration evidence in an effort to establish a 

classwide method of proving liability but, as the trial court found, those declarations are 

not substantial evidence of an articulable companywide policy which could be used to 

establish classwide liability.” (Morgan, supra, 210 Cal.App.4th 1341 at p. 1368.) In the 

present case, while the written JPPE’s themselves arguably constituted articulable 

company-wide policies, the manner in which the policies were implemented was 

anything but uniform.

We thus concur with the trial court that it would be impractical to “consider each 

possible combination and interpretation of the six rules, have the trier of fact determine 

which combinations rise to the level of control so as to amount to a failure to relieve of 

all duties, and then have each class member show whether he or she was subject to one of 

the offending combinations of rules. Such an exercise would be totally unmanageable.” 

 

11 Plaintiffs do not dispute that variations existed among Pacific Bell’s various dispatch 

garages as to how supervisors communicated the company’s JPPE’s to plaintiff class 

members. We note during the class period, Pacific Bell operated an average of 213 field 

garages in California. 
15

We appreciate the court’s concerns: “Trial courts must pay careful attention to 

manageability when deciding whether to certify a class action. In considering whether a 

class action is a superior device for resolving a controversy, the manageability of 

individual issues is just as important as the existence of common questions uniting the 

proposed class.” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29.) In sum, 

we conclude plaintiffs have failed to demonstrate that the lower court abused its 

discretion in denying certification.12 

DISPOSITION

The order denying class certification is affirmed.

_________________________

Dondero, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

 

12 In their reply brief, plaintiffs assert the court erred by not allowing class certification 

on behalf of specifically identified subclasses. They did not raise this contention in their 

opening brief. An appellant’s failure to raise an argument in its opening brief waives the 

issue on appeal. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 

361.)
16

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Wynne S. Carvill

Counsel for Plaintiffs and Appellants: Hoffman Libenson Saunders & Barba:

 Chad A. Saunders

 and

 H. Tim Hoffman 

The Cooper Law Firm:

 Scott B. Cooper

Altshuler Berzon LLP:

 Michael Rubin

Counsel for Defendant and Respondent: Morgan Lewis & Bockius LLP:

 George Stohner,

 Thomas M. Peterson,

 Rebecca D. Eisen

 and

 Stephen L. Taeusch

AT&T Services, Inc.:

 Jennifer S. Abramowitz