Filed 9/30/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RON MODARAEI,

Plaintiff and Appellant,

v.

ACTION PROPERTY 

MANAGEMENT, INC.,

Defendant and 

 Respondent.

 B290247

 (Los Angeles County

 Super. Ct. No. BC495179)

APPEAL from orders of the Superior Court of Los Angeles 

County, Ann I. Jones, Judge. Affirmed.

Parris Law Firm, R. Rex Parris, Kitty Szeto, John M. 

Bickford, and Ryan A. Crist; Lawyers for Justice, Edwin 

Aiwazian, and D. Elliot Gonzalez for Plaintiff and Appellant.

Jackson Lewis, Scott C. Lacunza, and Kyle C. Worrell for 

Defendant and Respondent.

____________________________
2

Ron Modaraei appeals from an order denying a motion for 

class certification in an employee misclassification case he 

brought against his former employer, Action Property 

Management (APM). He also appeals from an order terminating 

depositions of class members who signed declarations that were 

filed as part of APM’s evidence opposing class certification. 

Finding no abuse of discretion, we affirm the trial court’s orders.

BACKGROUND

APM provides property management services for common 

interest developments. The property (more specifically, the nonprofit corporation that is the homeowners or other common 

interest association) contracts with APM to provide “staffing and 

resources to oversee the operations of the corporation. That 

generally means that there is some type of a manager assigned to 

that corporation, and that manager essentially functions as a 

CEO of the corporation and works with the board of directors to 

carry out those responsibilities.”

The managers APM assigns to properties are “community 

managers,” “portfolio managers,” “general managers,” and “onsite managers.” While the term “community manager” could 

refer to any of the positions, the company uses “community 

manager” and “portfolio manager” interchangeably; likewise, the 

terms “general manager” and “on-site manager” are

interchangeable.1 As the parties do, we refer to the two 

1 APM’s Chief Executive Officer, Matthew Holbrook, 

explained that “[p]eople in the industry will refer to anybody that 

is an association manager potentially as a community manager.” 

APM calls managers whose assigned properties are managed 

from an APM corporate office “community managers” or “portfolio 

managers.” “On-site managers” and “general managers” are 
3

categories as community managers (CMs) and general managers 

(GMs).

APM hired Modaraei as a CM in its Rancho Cucamonga 

office in February 2007. Modaraei eventually became a GM at a 

high-rise building in West Hollywood, and later at a mid-rise 

building in downtown Los Angeles. Modaraei’s employment was 

terminated in September 2010. 

Modaraei filed this proposed class action against APM on 

November 2, 2012, alleging 10 causes of action stemming from 

APM’s alleged misclassification of CMs and GMs as exempt 

employees rather than non-exempt employees under Industrial 

Welfare Commission wage order No. 5-2001. (Cal. Code Regs., 

tit. 8, § 11050.)2 On October 10, 2014, Modaraei moved the trial 

court for an order certifying two subclasses of APM employees 

and former employees. The first proposed subclass was “[a]ll 

current and former salaried [CMs] employed by [APM] within the 

State of California at any time during the period from November 

2, 2008 until the present.” (Fn. omitted.) The second proposed 

subclass was “On-site Managers/General Managers.”

those whose offices are located at the assigned property. CMs 

typically (but not always) manage multiple properties at the 

same time. GMs manage a single property. 

2 Modaraei’s complaint alleged causes of action for unpaid 

overtime, unpaid meal period premiums, unpaid rest period 

premiums, unpaid minimum wages, final wages not timely paid, 

wages not timely paid during employment, non-compliant wage 

statements, failure to keep requisite payroll records, 

unreimbursed business expenses, and violations of Business and 

Professions Code section 17200. 
4

APM filed its opposition to Modaraei’s motion for class 

certification on September 1, 2017.3 Along with its opposition, it 

served declarations of more than 30 putative class members. At 

Modaraei’s request, the trial court continued the class 

certification hearing and ordered each of APM’s putative class 

member declarants to appear for deposition. The depositions 

were not to exceed 2.5 hours each. The trial court also ordered 

that “the subject matter scope of each deposition is limited to the 

facts and circumstances related to the preparation, generation 

and obtaining of the Declaration and the facts and information 

contained in the Declaration.”

On October 26, 2017, APM filed an ex parte application for 

a protective order terminating further depositions of its putative 

class member declarants. The next day, the trial court entered 

an order granting APM’s ex parte application.

Modaraei filed his reply in support of class certification on 

November 17, 2017. The trial court heard and denied Modaraei’s 

motion for class certification on May 11, 2018.4

In its order, the trial court stated that Modaraei had “not 

shown predominance of common questions and 

superiority/manageability.” The trial court compared and 

contrasted evidence Modaraei presented with evidence APM 

3 The record does not account for the delay between 

Modaraei’s October 2014 motion for class certification and APM’s 

September 2017 opposition.

4 In December 2017, APM filed a motion to deny class 

certification to be heard concurrently with Modaraei’s motion. 

The trial court denied APM’s motion as moot “[i]n light of the 

concurrent ruling denying [Modaraei’s] motion for class 

certification . . . .” 
5

presented and credited APM’s evidence over Modaraei’s to 

conclude that “the trier of fact would have to make individualized 

inquiries on a property-by-property basis and manager-bymanager basis to determine how CMs and GMs actually spent 

their time.” According to the trial court, individual questions 

would predominate. The trial court also concluded that 

Modaraei’s trial plan was inadequate because it failed to account 

for variations in tasks performed and the time CMs and GMs 

spent on those tasks (identified in the trial court’s predominance 

analysis) and because Modaraei’s expert witness’s “promise to 

conduct a statistical analysis in the future is not a trial plan.”5

Modaraei filed a timely notice of appeal.6

5 Along with its order denying class certification, the trial 

court made a number of evidentiary rulings based on objections 

filed by both parties. Neither party has appealed the trial court’s 

evidentiary rulings. “As a result, any issues concerning the 

correctness of the trial court’s evidentiary rulings have been 

waived. [Citations.] We therefore consider all such evidence to 

have been properly excluded.” (Lopez v. Baca (2002) 98 

Cal.App.4th 1008, 1014-1015.) We have not incorporated 

excluded evidence in the background or considered it in our 

review of the trial court’s order denying class certification.

6 The appellant’s appendix is both technically and 

substantively deficient. “The California Rules of Court require 

an appellant who elects to proceed by appendix to include, among 

other things, any document filed in the trial court which ‘is 

necessary for proper consideration of the issues, including . . . any 

item that the appellant should reasonably assume the respondent 

will rely on.’ ” (Jade Fashion & Co., Inc. v. Harkham Industries, 

Inc. (2014) 229 Cal.App.4th 635, 643 (Jade Fashion); Cal. Rules 

of Court, rule 8.124(b).) “Where the appellant fails to provide an 

adequate record of the challenged proceedings, we must presume 
6

DISCUSSION

Modaraei challenges the trial court’s order denying his

motion for class certification. Modaraei also appeals from the 

trial court’s October 27, 2017 order terminating the depositions of 

APM’s putative class member declarants.

I. Denial of Class Certification

Standard of Review

“ ‘We review the trial court’s ruling [denying class 

certification] for abuse of discretion and generally will not disturb 

it, “ ‘unless (1) it is unsupported by substantial evidence, (2) it 

rests on improper criteria, or (3) it rests on erroneous legal 

assumptions.’ ” ’ [Citation.] If the court’s ‘reasons for granting or 

denying certification . . . are erroneous, we must reverse, whether 

or not other reasons [could have been] relied upon [to] support[] 

that the appealed judgment or order is correct, and on that basis, 

affirm.” (Jade Fashion, at p. 644.) 

This recitation is not exhaustive by any measure, but the 

deficiencies in the appellant’s appendix include missing required 

documents, such as the register of actions (Cal. Rules of Court, 

rules 8.124(b)(1)(A) and 8.122(b)(1)(F)), and missing documents 

that Modaraei should have reasonably assumed APM would rely 

on (Cal. Rules of Court, rule 8.124(b)(1)(B)), such as APM’s 

memorandum of points and authorities it filed in opposition to 

Modaraei’s motion for class certification and the objections APM 

filed (and the trial court ruled on) to Modaraei’s class certification 

evidence. Some documents included in the appellant’s appendix 

were incomplete, such as a declaration of APM’s counsel 

attaching certain deposition testimony and other exhibits, and 

APM’s compendia of evidence filed to support its opposition to 

class certification. (See Cal. Rules of Court, rule 8.124(g).) 

But because APM filed a respondent’s appendix that 

included a record sufficient for us to review the trial court’s order, 

we do so. (See Jade Fashion, supra, 229 Cal.App.4th at p. 644.)
7

the ruling.’ [Citations.] In this respect, ‘ “appellate review of 

orders denying class certification differs from ordinary appellate 

review. Under ordinary appellate review, we do not address the 

trial court’s reasoning and consider only whether the result was 

correct. [Citation.] But when denying class certification, the trial 

court must state its reasons, and we must review those reasons 

for correctness. [Citation.] We may only consider the reasons 

stated by the trial court and must ignore any unexpressed reason 

that might support the ruling.” ’ ” (McCleery v. Allstate Ins. Co.

(2019) 37 Cal.App.5th 434, 450 (McCleery); see Duran v. U.S. 

Bank National Assn. (2014) 59 Cal.4th 1, 25 (Duran).) “Because 

trial courts ‘ “are ideally situated to evaluate the efficiencies and 

practicalities of permitting group action,” ’ they are ‘ “afforded 

great discretion” ’ in evaluating the relevant factors and ruling on 

a class certification motion.” (McCleery, at p. 450.)

Class Certification

“[W]hen the question is one of common or general interest, 

of many persons, or when the parties are numerous, and it is 

impracticable to bring them all before the court, one or more may 

sue or defend for the benefit of all.” (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.” (Brinker Restaurant Corp. v. Superior Court (2012) 

53 Cal.4th 1004, 1021; Noel v. Thrifty Payless, Inc. (2019) 7 

Cal.5th 955, 968.) “The community of interest requirement 

involves three factors: ‘(1) predominant common questions of law 

or fact; (2) class representatives with claims or defenses typical of 

the class; and (3) class representatives who can adequately 
8

represent the class.’ ” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th

429, 435.) 

Here, the inquiries at issue are predominance and 

superiority.

Predominance of Common Questions

1. Improper Criteria

Modaraei contends that the trial court abused its discretion 

by basing its predominance analysis on improper criteria. 

Modaraei argues that he based his theory of recovery on a 

“common core of non-exempt tasks,” and that the trial court 

improperly “bas[ed] its denial in variations that would have no 

effect on the core tasks.”

Modaraei’s argument is based on our opinion in Jaimez v. 

Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286 (Jaimez). In 

Jaimez, we concluded that the “[p]laintiff’s ‘theory of recovery’ 

involve[d] uniform policies applicable to [a group of employees] 

that” were amenable to class treatment. (Id. at p. 1299.) That 

the defendant might have “identif[ied] individual effects of 

policies and practices that may well call for individual damages 

determinations . . .” did not affect the amenability of the 

plaintiff’s theory of recovery to class treatment. (Id. at p. 1300.) 

“In Jaimez, the court explained that what the trial court must do 

is examine all the evidence together in light of the plaintiffs’ 

theory of recovery. If the plaintiffs choose to pursue their case on 

a theory that the defendants’ policies and procedures adversely 

affected the class as a whole, regardless that some class members 

may not have been harmed, then the evidence presented must be 

evaluated on that basis.” (Department of Fish & Game v. 

Superior Court (2011) 197 Cal.App.4th 1323, 1349.)
9

Modaraei contends that his theory of recovery is similar to 

the theory of recovery in Jaimez because GMs and CMs have the 

same “duties.” Modaraei also repeatedly turns to Sav-On Drug 

Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 330-331

(Sav-On) to persuade, as it tried to persuade the trial court, that 

there is a “reasonably definite and finite list” of tasks that GMs 

and CMs perform, and that all the trial court must do is 

determine whether each of those tasks is exempt or non-exempt. 

In Sav-On, however, “the tasks discussed in both defendant’s and 

plaintiffs’ submissions comprise[d] a reasonably definite and 

finite list.” (Ibid.) The same was true in Jaimez; the list of tasks 

class members performed was undisputed, and was a reasonably 

definite and finite list of tasks. (See Jaimez, supra, 181 

Cal.App.4th at p. 1302.) That is not the case here; the parties 

disagree about the tasks GMs and CMs perform. The trial court 

noted that distinction in its order, and we agree with the trial 

court’s ultimate assessment that “[u]nlike in Sav-on, where the

predominant issue was task classification, the predominant issue 

here is how CMs and GMs actually spent their time.” (See 

Duran, supra, 59 Cal.4th at p. 26; also (Cal. Code Regs., tit. 8,

§ 11050(1)(B)(1)(e) [“[t]he work actually performed by the 

employee during the course of the workweek must, first and 

foremost, be examined”].) Modaraei’s theory of recovery, then, 

depends on Modaraei first establishing the “reasonably definite 

and finite list of tasks” APM’s GMs and CMs perform. 

Modaraei’s burden on class certification is not to do so, but to

produce evidence that he can do so at trial. The trial court was 

not convinced he could.

The trial court’s order lays out in detail the differences 

between the parties’ evidence: “On the one hand, although 
10

[Modaraei’s] declarants acknowledge differences in the properties 

they managed, they state that ‘the responsibilities and tasks 

[they] performed were the same’ and that ‘[t]here was no 

relationship between the differences between the properties and 

the tasks and duties [they] performed on a daily, weekly or 

monthly basis.’ [Citations.]

“On the other hand, [APM] presents evidence that there are 

a multitude of factors affecting the complexity of a property and 

its manager’s tasks. [Citation.]

“Matthew Davidson . . . , [Modaraei’s] former supervisor, 

testified that a property may be more complex than another 

based on “[t]he type of issues that it’s facing, the size of the 

building, the infrastructure, the size of the staff, the level of 

amenities, the expectation of the residents.’ [Citation.] As an 

example, he stated that ‘an older building might have a lot of 

infrastructural repairs that are needed that require somebody 

with some experience in managing large capital improvement 

projects,’ while ‘a brand new building that was actually well built 

may not require a lot of repairs, and so you can have a manager 

who doesn’t have much experience on cap-ex but is a really good 

people person who could make the residents feel good about their 

living environment.’ [Citation.] In explaining how amenities 

affect a property’s complexity, he stated: ‘Well, buildings have 

different types of amenities, and the more stuff you have, the 

more maintenance it takes and the more stuff goes wrong with it. 

So you’re probably going to need a bigger staff and a larger 

budget if you have to maintain a building that has a theater 

room, a billiards room, a library, a conference room, a fitness 

facility, an indoor pool, an outdoor pool, and seven levels of gated 

parking than if you manage a building where everybody drives 
11

into their own private garage and there’s one walkway in 

between the units.’ [Citation.] As for the impact of building size, 

he stated: ‘The buildings that we manage come in all different 

shapes and sizes. We have one, I think it’s a nine-story building 

in Santa Monica that has about 30 units and we have a building 

in San Francisco that consists of four high-rise towers and 650 

units.’ [Citation.] He continued: ‘Well, the bigger the building, 

the more people it takes to run it, the larger the budget, and the 

more residents you have all with their own opinions about how 

they want their home to be managed and to look.’

“[APM’s] Person Most Knowledgeable, Matthew 

Holbrook . . . echoed Davidson’s testimony,[7] but identified even 

more factors affecting the tasks performed by CMs and GMs, 

such as:

• Demographics (‘We actually have communities that would 

be age-restricted communities, and then you have a whole 

variety of ranges of types of demographics in each 

community, and then there are subsegments within each 

community where there can be differences from one part of 

the community to another.’[8]

)

7 “When asked what factors go into the complexity of a 

property, [Holbrook] responded: ‘The staffing requirements, the 

services that are expected to be provided. The number of units 

plays into that. The overall volume of the amenities, the 

particular projects that may be in place at any given time, the 

overall staffing requirements. I don’t know if I mentioned the 

size of the budget. Anything that would add to the overall 

dynamics of the workload.’ [Citation.]”

8 “[Citation.] ‘If a community is age-restricted, then there’s 

responsibilities that a manager has to require and oversee the 
12

• Composition of Boards of Directors (‘Probably the primary 

difference just being in the individual boards of directors 

can differ. So just even personality differences within a 

board of directors has a significant impact on the overall 

nature of what it takes to manage the community.’)

• Governing rules (‘Yes, the bylaws, the CC&Rs, the articles 

of incorporation, the architectural guidelines, the rules and 

regulations. There are different municipality codes 

restrictions, etcetera, that are going to impact different 

communities in different ways based on where they’re 

geographically located.’)

• Type of property (‘A community manager is going to be 

responsible for overseeing the maintenance responsibilities 

of the roofing of the condo most of the time. Whereas in a 

single-family home community, they woud not be 

responsible for the roofing of the homes.’[9]

)

• Property location (e.g., urban versus suburban areas) (‘I 

can give you an example. So a high-rise community in 

downtown Los Angeles would be – the manager of a 

community would have responsibility to be overseeing 

process of new owners completing the proper documentation 

regarding the age restriction in the community.’ [Citation.]”

9 “[Citation.] In addition, a CM for a condominium is 

responsible for ‘[e]xterior painting of the individual units’ and 

‘[p]otentially the front yard landscape maintenance, the exterior 

lighting of a particular unit, potentially some window repairs, 

replacements; HVAC maintenance and repairs, replacement; 

boiler repair, replacement; rear yard fencing maintenance, 

repair, replacement; anything exterior to the unit or a part of the 

structural components of the units.’ [Citation.]”
13

added – an additional security and patrol service on the 

evening that the Los Angeles Kings won the Stanley Cup if 

their building was located close to Staples Center, where 

that event took place, in the event that there might be any 

crowd issues that might result from that dynamic. That’s 

unlikely to happen in a suburban area.’)

• Whether the property includes commercial units (‘Often in 

the urban communities, there will be some commercial 

component where there are commercial condominiums, and 

so the manager would have the responsibility of interfacing 

with the owners of the commercial units in the individual 

businesses, which raises a whole different list of issues that 

can arise.’)

• Whether the property is on a slope (‘The existence or 

nonexistence of slopes will drive a significant difference in 

what a manager’s duties are going to be.’)

“ . . . Here, the Court credits [APM’s] evidence (that there is 

a wide variation in tasks performed by CMs and GMs due to the 

differences in properties and the ensuing time demands on 

managers) over [Modaraei’s] cookie-cutter evidence (that tasks 

performed by CMs and GMs are exactly the same regardless of 

the property).” (Fns. omitted.) 

As we explained in Jaimez, “the California Supreme Court 

has set forth the ‘proper legal criterion’ for determining whether 

a class should be certified as ‘whether . . . plaintiffs . . . 

established “by a preponderance of the evidence that the class 

action proceeding is superior to alternate means for a fair and 

efficient adjudication of the litigation.” ’ ” (Jaimez, supra, 181 

Cal.App.4th at p. 1299, quoting Sav-On, supra, 34 Cal.4th at p. 

332.) “A trial court ruling on a certification motion determines 
14

‘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, at p. 326.)

The trial court here evaluated the evidence in the context of 

Modaraei’s theory of recovery, but it included the step that 

Modaraei omitted. At the hearing on Modaraei’s motion, the trial 

court repeatedly highlighted and asked for clarification of 

Modaraei’s omission. Modaraei took several different runs at 

establishing that the trial court could eventually discern a 

limited set of tasks to then be classified. The trial court credited 

APM’s contradictory evidence over evidence Modaraei collected, 

that the “core tasks” of both jobs are: “(1) collecting and 

processing dues; (2) processing service requests; (3) performing 

light service requests; (4) walking around the property to observe 

and record damage or disrepair; (5) providing customer service 

for the HOAs; and (6) performing other secretarial work for the 

HOAs.” 

At the hearing, Modaraei’s argument focused almost 

entirely on CM and GM job descriptions that included lists of 

“duties” that Modaraei called “tasks.” Some of those duties were 

“[i]mplement Board policy and directives within the scope of the 

management contract,” “[s]upervise all on-site personnel,” 

“[e]nsure compliance with all applicable Civil Codes and 

Corporations Codes,” “[m]eet[] contractual obligations for each 

community,” and “[g]uide, mentor and assist the respective board 

of directors[] to make sound, prudent and lawful business 
15

decisions.”10 The trial court expressly highlighted Modaraei’s 

conflation of “duties” with “tasks”: “I guess where I’m trying to 

direct an understanding out is how this list of duties and 

responsibilities turns into tasks. [¶] Because they are so broadly 

articulated and broadly defined that, while my collection of duties 

may define my job position, it certainly doesn’t translate into 

enumerated tasks that all a jury then would have to do is decide 

whether or not they’re exempt or nonexempt; and then whether 

or not the class spent more than half of their time performing 

them.” 

Modaraei also argued that a variety of standardized 

policies and procedures, like APM’s “Policy for Approval 

Authority & Signing of Contracts,” the requirement that CMs 

and GMs complete the “Certified Community Association 

Manager” program, APM’s “Vendor Selection Policy,” and APM’s 

“Guide to Community Management” standardized the positions 

to the point that GMs and CMs could exercise no discretion. The 

trial court determined that even with standardized policies, 

liability for each class member would turn on how individuals 

actually spent their time. 

That the trial court weighed evidence and credited one 

party’s evidence over conflicting evidence from another party does 

not constitute an “improper criteria” or “incorrect legal analysis.” 

(Sav-On, supra, 34 Cal.4th at p. 331 [“the trial court was within 

its discretion to credit plaintiffs’ evidence on these points over 

defendant’s, and we have no authority to substitute our own 

judgment for the trial court’s respecting this or any other conflict 

in the evidence”].) “ ‘Critically, if the parties’ evidence is 

10 The GM job description included 33 bullet points under 

the “duties” heading; the CM job description included 28. 
16

conflicting on the issue of whether common or individual 

questions predominate (as it often is . . .), the trial court is 

permitted to credit one party’s evidence over the other’s in 

determining whether the requirements for class certification have 

been met.’ ” (Mies v. Sephora U.S.A., Inc. (2015) 234 Cal.App.4th 

967, 981 (Mies); Duran, supra, 59 Cal.4th at p. 25.)

2. Substantial Evidence

Because we have concluded the trial court’s ruling does not 

rest on improper criteria or erroneous legal assumptions, we 

confine the remainder of our review to whether substantial 

evidence supports the trial court’s ruling. “As the Supreme Court 

has noted, this deferential aspect of the standard of review means 

that when an employee has sought to certify a ‘misclassification’ 

class of fellow employees with the same job title, the Courts of 

Appeal have ‘routinely upheld’ trial court orders denying 

certification, while also upholding other trial court orders 

granting certification.” (Mies, supra, 234 Cal.App.4th at p. 981.)

The evidence APM relied on to oppose Modaraei’s motion is 

sufficient to support the trial court’s ruling. APM produced 

declarations from more than 30 putative class members 

describing the variations in the properties and employees they 

managed. 

One GM was responsible for a 2,200 single-family residence 

community with two pools and two recreational centers. Another 

was responsible for a 43-story high-rise in San Diego with 248 

units and amenities including a conservatory, a gym, sauna, 

steam room, and a park. One CM was responsible for an 

association that would eventually have 318 homes, but 43 had 

not yet been built, and another that had 30 homes and would 

eventually have 132 total single-family homes. That CM noted 
17

that “[e]ach property is unique and requires different amounts of 

time for management and oversight,” and cited one of the 

properties that has two recreational areas, lawn areas, and four 

entrance gates. Another was responsible for four mid-rise condos 

and one townhome condo in the Los Angeles area. Two of the 

properties were similar and had similar projects like garage 

cleaning and hydrojetting, which the CM stated required more 

attention than the townhome property. “[T]he hours I work at 

each property are constantly changing depending on different 

circumstances affecting each community and what each contract 

states,” she said. 

The record reflects properties varying in size from a single 

building with 28 units to a property with 2,892 single-family 

residences. Property types ranged from simple condominiums to 

a community of 41 single-family estates. Individual home values 

across properties ranging from $200,000 to $30,000,000. 

Amenities varied from properties with few amenities to a 

property with a club house, swimming pool, tennis courts, bocce 

ball courts, fitness center, learning center, ballroom, café, spa, 

conference rooms, and a golf course. Some managers supervised 

no other employees, while one supervised as many as 80. And 

while some managers (primarily GMs) managed only one 

property, the record contains declarations from two CMs who 

were each responsible for nine separate properties. The record 

contains evidence sufficient to support the trial court’s 

determination that variations between the hundreds of properties 

the 228 putative class members were responsible for would 

command individual inquiries into how CMs and GMs actually 

spend their time to reach individual liability determinations.
18

We note, as the Supreme Court did in Sav-On, that this 

case turns primarily on the standard of review. In Sav-On, the 

Court wrote: “We need not conclude that plaintiffs’ evidence is 

compelling, or even that the trial court would have abused its 

discretion if it had credited defendant’s evidence instead. ‘[I]t is 

of no consequence that the trial court believing other evidence, or 

drawing other reasonable inferences, might have reached a 

contrary conclusion.’ ” (Sav-On, supra, 34 Cal.4th at p. 331.)

Superiority

The trial court determined that Modaraei’s “proposed trial 

plan is inadequate” because it did not address APM’s “defense 

that there are variations in the tasks performed and the time 

spent on those tasks by CMs and GMs.” The trial court also

rejected Modaraei’s expert witness’s proposal to conduct 

statistical analysis after class certification to reach a conclusion 

about tasks class members performed and how much time they 

spent performing those tasks. “[A] promise to conduct a 

statistical analysis in the future is not a trial plan,” the trial 

court said. 

We agree with the trial court’s analysis. The evidence to 

support the trial court’s superiority determination is largely the 

same as evidence supporting the predominance determination; 

because any trial about APM’s liability to its CMs and GMs 

would break down into individual trials for each GM and CM, we 

find no abuse of discretion. 

II. Termination of Depositions of APM Declarants

We review trial court discovery orders for abuse of 

discretion. (Williams v. Superior Court (2017) 3 Cal.5th 531, 

540.)
19

Modaraei contends that the trial court abused its discretion 

when it terminated depositions of putative class members whose 

declarations APM submitted in opposition to Modaraei’s motion 

for class certification. Modaraei argues that “the remaining 

deposition testimony was critical to the issues before the court” 

because “[a]dditional testimony as to what the declarants did and 

the lack of variation between properties would have allowed 

[Modaraei] to address the court’s concerns about commonality.”

The trial court did not abuse its discretion. As APM has 

pointed out and as the trial court explained at length during the 

class certification hearing, Modaraei had more than ample 

opportunity to obtain discovery from putative class members, 

including their depositions, between the time the case was filed 

in November 2012 (or even the time the motion for class 

certification was filed in October 2014) and the time APM filed its 

opposition to class certification in September 2017. 

Modaraei filed declarations of putative class members in 

support of his motion for class certification. Eight of those 

declarations constituted a “Compendium of Putative Class 

Member Declarations in Support of Plaintiff Ron Modaraei’s 

Class Certification.” Modaraei also submitted deposition 

testimony from nine more putative class members in support of 

his motion. Modaraei possessed names and contact information 

for every class member for at least two years before the hearing 

on his motion for class certification. He had every opportunity to 

get the discovery he needed to support his motion for class 

certification.

Additionally, based on his arguments here, none of the 

information he could have obtained by deposing every single 

putative class member (even outside APM’s declarants) would 
20

have changed the outcome. Modaraei contends that the trial 

court used improper criteria to arrive at a ruling on the motion 

for class certification. The criteria Modaraei contends the trial 

court should have used has nothing to do with variations in 

properties that APM presented. There is nothing in either the 

record or the parties’ briefs, therefore, to suggest that deposing 

even every single class member (as Modaraei theoretically had 

both the time and access to do) would have changed the 

argument Modaraei made to the trial court. Neither is there 

anything in the record or in the parties’ briefs to suggest that the 

trial court would have reached some different conclusion on class 

certification had it been able to see more of the same type of 

evidence Modaraei had already presented. The trial court noted 

as much at the class certification hearing: “[T]hose depositions 

don’t change the gravamen of your argument. The gravamen of 

your argument is that the PMK said, ‘this is a complete 

description of the duties and responsibilities of the putative class 

members. [¶] ‘With those duties and responsibilities, I have 

sufficient predominant common proof, and I can go through this 

list of duties and responsibilities, assign them to either exempt or 

nonexempt classifications, and compute whether or not it exceeds 

50 percent.’ [¶] That’s your argument. So it doesn’t make a 

whole heck of a lot of difference about the declarations because 

your argument doesn’t rely on them. It doesn’t.” 

Moreover, Modaraei does not challenge the scope of the 

trial court’s discovery orders (that he violated), but rather he 

challenges the trial court’s decision to enforce the discovery 

orders it made by not allowing further violations. The trial court 

allowed Modaraei depositions of APM’s putative class member 

declarants “for the limited purpose of asking about the way in 
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which the declarations were prepared, the witnesses’ 

participation in the preparation of that declaration, and to 

examine the question of whether or not the similarity of the 

declarations supported some kind of contention that they had 

been invented by the lawyers or otherwise weren’t their genuine 

recollection or recall . . . . [¶] Despite the fact that the discovery 

was limited solely to the preparation of the declaration, questions 

were asked by plaintiff’s counsel that went far outside of that 

order. [¶] I got an emergency request for a further status 

conference. It was conducted, and I declined to allow the 

discovery to go forward because it didn’t appear that the stated 

reason for needing the discovery was, in fact, the reason that – it 

didn’t comport with the questions being asked.” 

On this record, we find no abuse of discretion. And given 

the record and Modaraei’s arguments here, we could not conclude 

that any error would have been prejudicial. (See MacQuiddy v. 

Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045.)

DISPOSITION

The trial court’s orders are affirmed. APM is entitled to its 

costs on appeal.

CERTIFIED FOR PUBLICATION

CHANEY, J.

We concur:

ROTHSCHILD, P. J. WEINGART, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.