Filed 2/27/15 Salazar v. Avis Budget Group CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GELASIO SALAZAR et al.,

Plaintiffs and Appellants,

v.

AVIS BUDGET GROUP, INC., et al.,

Defendants and Respondents.

 D065148

 (Super. Ct. No. GIC 876049)

APPEAL from an order of the Superior Court of San Diego County, 

Ronald L. Styn, Judge. Affirmed.

Pope, Berger & Williams, Pope, Berger, Williams & Reynolds, Harvey C. Berger 

and Timothy G. Williams; Hosey & Bahrambeygui and Patrick L. Hosey; Boudreau 

Williams and Jon R. Williams for Plaintiffs and Appellants.

Littler Mendelson, Theodore R. Scott, Jody A. Landry and Jerrilyn T. Malana for 

Defendants and Respondents.

Gelasio Salazar and Saad Shammas (together, Plaintiffs) appeal an order denying 

their motion for class certification of a putative class of employees of Avis Budget 
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Group, Inc., Avis Budget Car Rental, LLC, AB Car Rental Services, Inc., Budget Rent A 

Car System, Inc., and Avis Rent A Car System, LLC (together, Avis). Plaintiffs alleged

that Avis failed to provide various classifications of auto mechanics with meal periods or 

premium wages for missed meal periods in accordance with California law. On appeal, 

Plaintiffs contend the trial court (1) relied on improper criteria to deny class certification, 

and (2) failed to properly consider their theory of the case and instead improperly 

examined the merits of their claims. We conclude that the trial court was within its 

discretion to deny the motion for class certification, and we accordingly affirm the trial 

court's order.

FACTUAL AND PROCEDURAL BACKGROUND

Avis employed Plaintiffs as mechanic's helpers. In November 2006, they filed a 

class action complaint against Avis for alleged meal period and other labor violations. 

Avis removed Plaintiffs' complaint to federal court. Plaintiffs later moved to certify a 

state-wide class of auto mechanics who had performed work for Avis since November 

2002. The federal court denied class certification, finding individual issues 

predominated. The federal court remanded the case.

In August 2013, Plaintiffs filed a renewed motion for class certification in the 

superior court. Plaintiffs requested certification of a class of "[a]ll Auto Mechanics who 

have worked for [Avis] for a period of more than six hours on one or more days on and

after November 27, 2002 until December 31, 2011." The purported class included 

individuals employed under the classifications of mechanic, mechanic's helper, 

technician, lube technician, "201," utility agent and other similar positions (collectively, 
3

auto mechanics). Plaintiffs argued Avis lacked proper records showing meal periods 

were always taken. Further, Plaintiffs claimed that Avis had a practice to never pay meal 

period premium wages. Thus, Plaintiffs stated their theory of recovery was that "for each 

day on which an Auto Mechanic's time records show that he/she worked more than six 

hours but without at least a thirty-minute meal period which started by the sixth hour of 

work, he/she [was] owed a meal period premium payment; and for each day on which an 

Auto Mechanic's time records show that he/she worked more than ten hours but without 

at least a second thirty-minute meal period which started by the tenth hour of work, 

he/she [was] owed a meal period premium payment."

To support their motion, Plaintiffs produced evidence that they and other Avis 

auto mechanics did not always receive meal breaks of at least thirty minutes on days 

when they worked more than six hours and a second thirty minute meal break on days 

when they worked more than ten hours. These individuals also did not receive extra 

compensation on those days. Plaintiffs claimed that although Avis's policy was to

comply with the law, its practices encouraged employees to delay, skip or interrupt meal 

periods. Meal periods were not always recorded on time records. Further, Avis did not 

have a policy regarding paying extra compensation if an auto mechanic failed to record a 

full meal period.

Avis opposed the class certification motion, arguing that individual issues would 

predominate. Avis asserted some but not all of the defendant entities employed auto 

mechanics throughout California. Auto mechanics at some locations were part of unions 

and covered by collective bargaining agreements while others were not. The collective 
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bargaining agreements varied from facility to facility and each contained different terms 

and conditions. For example, some collective bargaining agreements contained specific 

provisions for meal periods while others were silent on the topic.

Avis's policy in regard to meal periods was to comply with state laws. However, 

the manner in which the policy was implemented varied at each facility. In some 

locations, auto mechanics were not required to punch out for their meal periods and the 

practice was for those meal periods to be paid time. In other locations, auto mechanics 

were required to clock out for their meal periods, but still received compensation for that 

time. In yet other locations, auto mechanics were required to clock out for meal periods 

but were not paid for that time.

Avis also submitted declarations from auto mechanics showing the manner in 

which they took meal breaks varied by location. The declarants understood that they 

were allowed to take a thirty minute meal break. Some auto mechanics started their meal 

break at a specified time while others had flexibility to decide when to take their meal 

break. In some locations, a bell sounded to notify auto mechanics to start their meal 

period and in other locations auto mechanics decided on their own when to take a meal 

break. While some auto mechanics always took their meal break, others voluntarily 

chose to take shorter breaks or skip them altogether on occasion. In certain locations, 

some auto mechanics chose to delay their meal break until finishing the task they were 

working on.

The trial court denied Plaintiffs' renewed motion for class certification. After 

setting forth the legal standards governing class certification, the trial court concluded 
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Plaintiffs had failed to establish the existence of "'predominant common questions of law 

or fact.'" The trial court identified Plaintiffs' theory of recovery and then detailed the 

evidence demonstrating a lack of commonality for class claims. The trial court stated the 

following:

"The evidence presented shows a significant variance in whether, 

when and how putative class members received meal breaks. The 

evidence from putative class members includes statements that 

compliant meal period policies were communicated to them; no meal 

period policy was explained to them; they understood that they were 

allowed to take a 30 minute meal period each day before working 

more than five hours; no one was impeded or discouraged from 

taking a meal period, or pressured to take a shorter meal period; they 

were never directed to skip a meal period; they received meal breaks 

of 30 minutes; they did not receive meal breaks of 30 minutes; they 

were required to clock out for meal breaks; they were not required to 

clock out for meal breaks; they forgot to clock out for meal breaks; 

they did not receive their meal break at the required time (5 hours; 

10 hours); they did not receive uninterrupted meal breaks; there were 

occasions when they opted not to take a meal break; they voluntarily 

took later meal breaks; they chose to return from [their] meal breaks 

early so they could leave work earlier; they chose not to take their 

second meal break (after 10 hours) because they wanted to leave 

work earlier; they were allowed to take their meal break without 

clocking out; they clocked out for meal breaks; and they signed meal 

period waivers. In sum, the evidence as to why employees missed 

meal breaks varies and appears to be, at least in some instances, 

based on the personal choice of the employee. The evidence also 

shows that the procedures for taking meal periods varied by location 

and by shift. At some locations all employees on a shift took meal 

periods together; at other locations, meal period times were assigned, 

and at still other locations, employees chose when to take a meal 

period. At some locations the time for taking meal periods was 

tracked; at other locations it was not tracked because meal periods 

were paid. The evidence also shows that applicable collective 

bargaining agreements, which address meal periods, varied from 

facility to facility, and that some facilities were non-union. This 

evidence does not support a finding of a uniform practice. Rather, 

this evidence establishes that the practice of taking meal periods 

varied among employees. In the absence of evidence of a uniform 
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policy or practice, Plaintiffs fail to demonstrate how their meal 

period claims could be shown 'through common proof.' As in 

Brinker, where no substantial evidence points to a uniform, 

companywide policy, proof of liability will have to be based on an 

'employee-by-employee fashion' demonstrating when and why they 

did not receive appropriate meal periods. [(Brinker Restaurant Corp. 

v. Superior Court (2012) 53 Ca1.4th 1004, 1052 (Brinker).)] Such 

variance in practices precludes a common method of proof. As such 

there is insufficient basis for a finding of commonality."

The trial court went on to discuss Plaintiffs' claim that Avis's failure to always 

keep time records of meal breaks established commonality. In that regard, the trial court 

concluded Plaintiffs did not demonstrate a uniform policy on the part of Avis to deprive 

putative class members the ability to take meal breaks and without such showing, 

Plaintiffs did not establish that common issues predominate. The trial court concluded 

that Avis's evidentiary burden to keep time records "does not dispense with the 

requirement that Plaintiffs[] demonstrate commonality."

DISCUSSION

I. General Legal Principles and Standard of Review

"State law obligates employers to afford their nonexempt employees meal periods 

and rest periods during the workday. . . . Employers who violate these requirements must 

pay premium wages. [Citations.]" (Brinker, supra, 53 Cal.4th at p. 1018.) An employer 

satisfies its obligation to provide meal periods "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." (Id. at p. 1040.) "[T]he employer is not obligated to police meal breaks and 

ensure no work thereafter is performed." (Ibid.)
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Pursuant to Labor Code section 512, subdivision (a), "[a]n employer may not 

employ an employee for a work period of more than five hours per day without providing 

the employee with a meal period of not less than 30 minutes . . . . An employer may not 

employ an employee for a work period of more than 10 hours per day without providing 

the employee with a second meal period of not less than 30 minutes." In certain 

circumstances, these meal periods may be waived by mutual consent of the employer and 

the employee. (Ibid.)

"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.]'" (Brinker, supra, 53 Cal.4th 

at p. 1022.)

"'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. [Citations.]' [Citations.] Predominance is a factual question; accordingly, 

the trial court's finding that common issues predominate generally is reviewed for 

substantial evidence. [Citation.] We must '[p]resum[e] in favor of the certification order 

. . . the existence of every fact the trial court could reasonably deduce from the record 

. . . .' [Citation.]" (Brinker, supra, 53 Cal.4th at p. 1022.) Thus, we will affirm if 

substantial evidence supports the court's ruling, even if there is evidence that might also 
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support a contrary ruling. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 

988 [noting a court of review does not reweigh evidence but draws all reasonable 

inferences supporting the order].)

II. Predominance of Common Issues

Plaintiffs contend the trial court relied on improper criteria to deny class 

certification. Specifically, they assert the trial court did not give proper weight to Avis's 

failure to keep proper time records of meal breaks, which Plaintiffs assert created a 

presumption that Avis was not providing meal periods. We reject Plaintiffs' argument.

A party seeking class certification has the burden of establishing the prerequisites 

to certification and "'more than "a reasonable possibility" that class action treatment is 

appropriate.'" (Miller v. Bank of America, N.A. (2013) 213 Cal.App.4th 1, 7.) That party 

must show "the existence of an ascertainable and sufficiently numerous class, a welldefined 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 also Code Civ. Proc., § 382.) "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." (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 

470.)

The element of predominant common questions requires, essentially, that factual 

and legal questions common to the claims of the putative class members predominate 

over issues affecting members individually. (See Brinker, supra, 53 Cal.4th at p. 1021
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[observing that the "'ultimate question' the element of predominance presents 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'"].) "In wage and hour cases 

where a party seeks class certification based on allegations that the employer consistently 

imposed a uniform policy or de facto practice on class members, the party must still 

demonstrate that the illegal effects of this conduct can be proven efficiently and 

manageably within a class setting." (Duran v. U.S. Bank National Assn. (2014) 59 

Cal.4th 1, 29.)

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.'" (Brinker, supra, 53 Cal.4th at p. 1022.) In resolving this issue, 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. To the extent the propriety of certification depends upon disputed 

threshold legal or factual questions, a court may, and indeed must, resolve them." (Id. at 

p. 1025.)

Here, the trial court relied on proper criteria to deny Plaintiffs' class certification 

motion. The trial court set forth the correct standard for certification, noting the 

requirement that Plaintiffs demonstrate predominant questions of law or fact. The court 

found this factor was dispositive of Plaintiffs' motion.
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At the outset, the court concluded that Plaintiffs failed to present evidence 

establishing a uniform policy on the part of Avis to deprive putative class members of the 

ability to take meal breaks. This conclusion is supported by the record. Avis submitted 

declarations from numerous auto mechanics stating that they understood they were 

allowed to take meal breaks. Some auto mechanics always took their meal break and 

others voluntarily chose to take shorter breaks or skip them altogether on occasion. 

Avis's policy was to comply with state law in regard to providing meal periods. Plaintiffs 

did not produce evidence establishing that Avis had a uniform policy or practice that 

deprived auto mechanics from taking full meal periods. Even if Plaintiffs had established 

a uniform policy, however, the inquiry does not end there. (Koval v. Pacific Bell 

Telephone Co. (2014) 232 Cal.App.4th 1050, 1062-1063 (Koval) [holding that "the 

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

and certification was properly denied where company's supervisors differed in 

implementing meal period policies].)

Indeed, as the trial court aptly detailed (see ante, part I), there were numerous 

variances in whether, when and how putative class members received meal breaks. For 

example, some auto mechanics clocked out for their meal periods and others did not. Of 

those who clocked out, some were paid for that time and some were not. Some auto 

mechanics started their meal break at a specified time while others had flexibility to 

decide when to take their meal break. Certain locations used a bell system to notify auto 

mechanics to start their meal period and in other locations auto mechanics decided on 

their own when to take a meal break. Additionally, some auto mechanics were under 
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union contracts that had provisions for meal periods, some union contracts were silent on 

the issue, and some auto mechanics were not part of collective bargaining agreements. 

This evidence shows that Avis did not consistently apply a policy or practice that denied 

auto mechanics their full meal periods as required by law. (See Brinker, supra, 53 

Cal.4th at p. 1033; cf. Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th

220, 225 & 233 (Faulkinbury) [noting class certification of three subclasses was proper 

because, unlike the instant case, the defendant security guard company there had a 

uniform policy, as reflected both in an agreement it made its employees sign and in the 

deposition testimony of a company vice-president, requiring employees to take on-duty 

meal periods and not to leave their posts for any off-duty rest breaks because the 

company believed the nature of the work prevented an employee "from being relieved of 

all duties"].) Thus, we agree with the trial court that "the requisite commonality is absent 

in this case."

Largely ignoring the numerous factors the trial court detailed for finding lack of 

commonality (see ante, part I), Plaintiffs focus on Avis's alleged failure to keep proper 

time records of meal breaks. Relying primarily on a statement made by Justice Werdegar 

in her concurring opinion in Brinker, Plaintiffs contend that because Avis did not always 

record meal periods for auto mechanics, a rebuttable presumption arose that no such meal 

periods were provided for purposes of class certification. (See Brinker, supra, 53 Cal.4th 

at p. 1053 (conc. opn. of Werdegar, J.) [stating that if an employer's records show no 

meal period for a given shift over five hours, "a rebuttable presumption arises that the 

employee was not relieved of duty and no meal period was provided"].) However, 
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Justice Werdegar's statement in a concurring opinion is not binding precedent (see 

Turney v. Collins (1941) 48 Cal.App.2d 381, 388) and does not shift the burden to a 

defendant to refute a class-wide finding of meal break violations. (See, e.g., Seckler v. 

Kindred Healthcare Operating Group, Inc. (C.D.Cal. Mar. 5, 2013, No. SACV 10-01188 

DDP (Rzx)) 2013 U.S.Dist. Lexis 29940, *8 [rejecting argument that statement by Justice 

Werdegar in Brinker relieved plaintiffs of their ultimate burden to establish requirements 

for class certification, including a showing there are questions of law or fact common to 

the class, but noting the defendant employer would have the burden to rebut the 

presumption of inadequate meal periods for an individual employee].) As we have 

already discussed, Plaintiffs have not established that common factual or legal issues 

predominate.

Plaintiffs' arguments amount to a very narrow reading of the trial court's order. 

Plaintiffs appear to suggest that the trial court's order denying certification purely hinged

on the issue of Avis's time records. However, the order makes clear that the trial court 

considered Plaintiffs' argument concerning Avis's time records and rejected certification 

because despite the time records, Plaintiffs had not established common issues of law or 

fact. The trial court extensively detailed why Plaintiffs had not shown their class claims 

could be established through common proof. Where, as here, there are significant 

variances in whether, when and how putative class members received meal breaks and 

there is insufficient evidence of a common policy or practice, the trial court acted well 

within in discretion in denying certification. (See Koval, supra, 232 Cal.App.4th 1050.)
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III. Trial Court's Consideration of the Merits of Plaintiffs' Claims

Plaintiffs argue the trial court failed to properly consider their theory of the case 

and instead improperly examined the merits of their claims. We reject Plaintiffs'

argument.

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

whether an action is legally or factually meritorious."' [Citations.] A class certification 

motion is not a license for a free-floating inquiry into the validity of the complaint's 

allegations; rather, resolution 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 [citation]. 

[¶] We have recognized, however, that 'issues affecting the merits of a case may be 

enmeshed with class action requirements . . . .' [Citations.] When evidence or legal 

issues germane to the certification question bear as well on aspects of the merits, a court 

may properly evaluate them. [Citations.] The rule is that a court may 'consider[] how 

various claims and defenses relate and may affect the course of the litigation' even though 

such 'considerations . . . may overlap the case's merits.'" (Brinker, supra, 53 Cal.4th at p. 

1023.) "[A]ny 'peek' a court takes into the merits at the certification stage must 'be 

limited to those aspects of the merits that affect the decisions essential' to class 

certification." (Id. at p. 1024.)

Here, Plaintiffs claim their theory of the case was that "for each day on which an 

Auto Mechanic's time records show that he/she worked more than six hours but without

at least a thirty-minute meal period which started by the sixth hour of work, he/she is 
14

owed a meal period premium payment; and/or for each day on which an Auto Mechanic's 

time records show that he/she worked more than ten hours but without at least a second 

thirty-minute meal period which started by the tenth hour of work, he/she is owed a meal 

period premium payment." The trial court clearly considered this theory, concluding it 

was not persuaded by Plaintiffs' reliance on Avis's time records as establishing a uniform 

policy as the time records by themselves did not establish that Avis had a uniform policy 

or practice to deprive auto mechanics of meal periods.

We also reject Plaintiffs' contention that the trial court's interpretation of 

declarations offered by Avis amounted to an improper examination of the merits of their 

claims. The trial court did not overstep its bounds by considering Avis's declarations. 

Rather, the trial court considered all of the evidence before it, including declarations 

submitted by Plaintiffs and Avis, to assess whether class treatment was appropriate. The 

trial court did not deny certification based on a finding that Plaintiffs' complaint lacked 

merit as a matter of law. It did not suggest that in any regard. Rather, it appropriately

considered the evidence before it bearing on the issue of commonality.

Lastly, we reject Plaintiffs' claim that the trial court made "a faulty legal 

assumption" that variances in whether, when and how putative class members received 

meal breaks defeated class certification. In asserting this argument, Plaintiffs rely on 

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

Faulkinbury, supra, 216 Cal.App.4th 220, and Bradley v. Networkers International, LLC 

(2012) 211 Cal.App.4th 1129 (Bradley). Plaintiffs claim those cases stand for the 

proposition that certification cannot be denied based on variances in the way employees 
15

took meal periods. However, those cases are all distinguishable as they involved a 

uniform policy or practice or lack thereof that impacted all employees the same way. 

(See Benton, at pp. 729-730; Faulkinbury, at p. 233; Bradley, at p. 1150.) Moreover, 

those cases do not dispense with the requirement that Plaintiffs establish their claims can 

be proved through common facts or law. Variances in the ways policies are implemented 

and the manner in which employees took meal periods are proper factors to consider in 

evaluating certification. (See Koval, supra, 232 Cal.App.4th 1050.) Each case must be 

addressed on its own unique facts. (Ibid.)

Based on the foregoing, we conclude Plaintiffs failed to meet their burden of 

establishing that common issues predominate and thus, the trial court acted well within its 

discretion in denying class certification.

DISPOSITION

The trial court's order denying class certification is affirmed. Respondents are 

entitled to costs on appeal.

MCINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.