1 

Filed 5/1/14 Castro v. Creative Design Interiors CA3 

NOT TO BE PUBLISHED 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

JOSE RAMON CASTRO et al., 

 Plaintiffs and Appellants, 

 v. 

CREATIVE DESIGN INTERIORS, INC., 

 Defendant and Respondent. 

C070938 

(Super. Ct. No. 

34200900063544UOEGDS) 

 Plaintiffs Jose Ramon Castro, Aquilino Espinoza, Arturo Lopez and Miguel 

Vargas (the putative class representatives) were employed by defendant Creative Design 

Interiors, Inc. (CDI) to install and supervise the installation of tile, primarily in residential 

properties. The putative class representatives filed a class action complaint against CDI 

for various wage and hour violations. The trial court denied their motion for class 

certification, concluding that the class was not sufficiently ascertainable and that common 

questions of fact or law did not predominate. 
2 

 The putative class representatives now contend the trial court erred in denying 

class certification because (A) the class could be ascertained through CDI payroll 

records, and (B) common issues of fact and law predominate if damage questions are 

viewed in their proper context. 

 We conclude the trial court did not abuse its discretion in denying class 

certification. Substantial evidence established significant evidentiary challenges which 

would have made it difficult to ascertain the identity of class members. In addition, the 

trial court’s conclusion that individual questions predominated over common questions 

did not improperly conflate liability and damage issues. The trial court applied proper 

criteria and legal assumptions in ruling that class certification would not provide 

substantial benefits to the litigants and the court in this case. 

 We will affirm the order denying class certification. 

BACKGROUND 

 CDI’s customers are primarily builders of new housing developments. CDI 

installs residential flooring made of stone, tile, vinyl, wood and carpet, all of which it 

references as tile. 

 The putative class representatives sought to define the class in this case as tile 

workers, the workers who demolish, finish, set, replace, install or repair those flooring 

materials. Installation was accomplished under the direction of crew leaders who 

reported to area managers. 

 Each of the four putative class representatives was a tile worker and former CDI 

crew leader. Each of them reported to the same area manager in Stockton. Crew leaders 

relied on area managers for instruction on timekeeping, time reporting and paycheck 

distribution. Crew leaders recruited, hired and supervised the work of their crew 

members; they assured that timecards were completed and they submitted and distributed 

paychecks. CDI issued hourly paychecks to all tile workers, and crew leaders set the 
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hourly pay rate for their crew members. All payroll records were maintained in the 

Sacramento office. 

 CDI bid for flooring jobs based on an estimate of the combined cost of materials 

and labor. Crew leaders who kept a project’s total cost below the bid amount kept the 

remainder as a completion bonus. A crew leader had the discretion to keep the entire 

bonus or distribute it in whole or in part to crew members. Some crew leaders falsified 

payroll records and timesheets, personally cashed paychecks made out to crew members 

or themselves and paid workers in cash according to a daily rate or a percentage of the 

total received. In addition, some crew leaders used aliases so they could submit multiple 

timesheets, cash the resulting paychecks and pay undocumented workers. 

 The complaint alleged that CDI told tile workers they would be paid on a piece 

rate basis, but then on threat of withholding wages and terminating employment, coerced 

the workers to complete sham timesheets. The complaint further alleged that workers 

were not paid for all the hours they worked, were not always given meal or rest breaks 

and, if they failed to meet deadlines, were subject to having money deducted from their 

wages. The complaint also alleged numerous other violations of labor law. 

 The putative class representatives testified that timesheets routinely reported eight 

hours of work five days a week, even though the workers sometimes worked six or seven 

days a week, 12 or 14 hours a day, and that, contrary to California law, the timesheets did 

not record start and stop times. 

 Crew leaders testified that they were not reimbursed for mileage or the use of 

personal vehicles even though CDI had a policy requiring class members to use their 

personal vehicles to travel between job sites and pick up materials. CDI admitted that 

crew leaders were not reimbursed for travel. CDI also admitted that workers had to pay 

for hand tools and power tools out of their own pockets, and if they used a CDI supplier 

account, the cost of tools would be deducted from their paychecks. CDI required regular 
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daily cell phone communication with crew leaders, but did not reimburse for personal cell 

phone costs. 

 The complaint asserted eight causes of action.1 The putative class representatives 

moved for class certification on all but one. The class was described in the motion as 

“[a]ll nonexempt employees of [CDI] who worked on-site installing, repairing, or helping 

to install or repair wood, vinyl, carpet, tile and/or stone, or who performed preinstallation or post-installation work related to the installation or repair of wood, vinyl, 

carpet, tile and/or stone, on behalf of CDI at any time from November 2, 2005 to the 

present.” The putative class representatives estimated that the class would include more 

than 275 people; CDI estimated that it may include as many as 450. 

 After hearing evidence, the trial court denied class certification because the class 

would be difficult to ascertain and because common issues of law and fact did not 

predominate. It concluded a class action “would not create efficiencies for the parties or 

the Court.” 

 Regarding ascertainment of the class, the trial court cited evidence presented by 

CDI that two of the named plaintiffs worked under multiple names, engaged multiple 

persons to work under a single name and that one of them even worked and was paid 

under the name of a person who never appeared at a CDI jobsite. The trial court also 

cited evidence that, as crew leaders, the named plaintiffs routinely hired workers “off the 

books,” so there could be “a significant number of persons” who could qualify as class 

 

1 The complaint alleged (1) failure to pay wages (Lab. Code, § 200); (2) failure to pay 

overtime compensation (Lab. Code, §§ 510, 1194, 1198); (3) unauthorized repayment of 

wages to employer (Lab. Code, § 221); (4) failure to provide meal and rest breaks (Lab. 

Code, §§ 226.7, 512, subd. (a)); (5) waiting time penalties for nonpayment of wages 

(Lab. Code, § 203); (6) failure to reimburse expenditures (Lab. Code, § 2802); (7) failure 

to provide accurate wage statements (Lab. Code, § 226); and (8) unfair business practices 

(Bus. & Prof. Code, § 17200). Class certification was sought on all but the fourth cause 

of action. 
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members but not be identified in any employment records. On the issue of common 

questions, the trial court found a predominance of individual issues. It ruled that even if 

the alleged wrongful conduct was proven, determining whether an individual employee 

suffered harm from the conduct would require a “worker-by-worker and job-by-job” 

analysis. 

 Additional factual details are included in the discussion below. 

STANDARD OF REVIEW 

 Class actions are authorized “when the question is one of a common or general 

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

bring them all before the court . . . .” (Code Civ. Proc., § 382) Parties seeking class 

certification must establish both an ascertainable class and a well-defined community of 

interest among class members. (Lockheed Martin Corp. v. Superior Court (2003) 

29 Cal.4th 1096, 1104.) The “community of interest” element includes 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.’ [Citation.]” (Ibid.) The certification question is procedural, 

meaning that instead of looking to whether the claims are legally or factually meritorious, 

the inquiry must focus on “whether . . . maintenance of a class action would be 

advantageous to the judicial process and to the litigants.” (Collins v. Rocha (1972) 

7 Cal.3d. 232, 238.) 

 We review an order denying class certification for abuse of discretion. (Sav-On 

Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) We will not disturb the 

trial court’s ruling unless it used improper criteria or made erroneous legal assumptions. 

(Id. at p. 327.) If a class certification motion requires the evaluation of disputed facts, we 

review the trial court’s factual determinations under the substantial evidence standard. 

(Id. at p. 328.) 
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DISCUSSION 

 The putative class representatives contend the trial court erred in denying class 

certification because (A) the class could be ascertained through CDI payroll records, and 

(B) common issues of fact and law predominate if damage questions are viewed in their 

proper context. 

A 

 We first examine the contentions relating to the ascertainment of class members. 

The putative class representatives contend that, as a matter of law, the burden of keeping 

accurate time and pay records belongs with employers, so to the extent potential class 

members were misidentified in CDI personnel records, the problem must be attributed to 

CDI. CDI contends that the crew leaders, including the putative class representatives, 

were responsible for hiring, firing and submitting payroll data for their crews and their 

falsification of records was not revealed until depositions were taken in preparation for 

the class certification motion. The putative class representatives concede there is no 

evidence “that CDI knew of, controlled, or suffered or permitted to work any individual 

not formally on its payroll.” 

 CDI argues that, given the falsified records, there are no objective means to 

determine whether individuals who are not accurately identified in CDI personnel records 

are employees -- and class members -- without conducting a fact-intensive “ ‘control 

test’ ” for each of them. 

 The fact that crew leaders hired undocumented workers and paid them cash from 

paychecks made out to the leaders created an ascertainment problem. The putative class 

representatives respond that only those identified in the official CDI payroll records are 

intended to be class members, and the class definition excludes anyone for whom no 

records exist. They argue it should not matter what crew leaders did with paychecks once 

they were cashed, and individuals hired “under the table” should be of no concern to the 

class because they could not be CDI employees if they were not on the CDI payroll. The 
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proposed class was defined, however, as those who “worked on-site installing, repairing, 

or helping . . .” and it did not exclude individuals who met that definition but were not 

issued CDI paychecks. The definition makes no distinction between workers identified 

by payroll records and other workers. 

 To notify only those individuals named in the payroll records necessarily would 

have deprived unidentified or misidentified workers of notice. The trial court could not 

presume that those individuals were employed by the crew leaders instead of by CDI. As 

a matter of law, payroll records are not sufficient to conclusively determine the existence 

of an employer-employee relationship. (Futrell v. Payday California, Inc. (2010) 

190 Cal.App.4th 1419, 1435.) Rather, an individualized application of the multifaceted 

common law employment test is required when there is ambiguity. (Id. at p. 1434.) 

Ignoring workers not identified in payroll records would not have made the class 

appropriately ascertainable nor did the putative class representatives proffer any other 

way to get around the problems created by the inaccurate payroll records. 

 Moreover, two of the putative class representatives worked under different names. 

One of them under three names, none of them his own, and the other worked under seven 

names. They also shared an alias at times while working on separate crews. The same 

two individuals testified that they prepared and submitted all timesheets for their crews, 

using borrowed social security numbers that did not match actual worker names, then 

cashed paychecks for the group and paid the workers in cash using a daily rate that bore 

no relationship to the timesheets or paychecks. CDI acknowledges its legal obligation to 

maintain accurate time and pay records but denies that it knew about or sanctioned these 

practices. 

 “A class representative has the burden to define an ascertainable class.” 

(Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 918.) Class members are 

“ascertainable” if they can be readily identified without unreasonable expense or time by 

reference to official or business records. (Id. at p. 919.) The standard does not 
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distinguish among the types of records from which class members may be “readily 

identified” and it allows for no apportionment of blame when records are inadequate. In 

this case, the putative class representatives said the tangle of names and social security 

numbers ultimately was the fault of CDI. That may be true, but the trial court found that 

CDI’s payroll records were unreliable for the purpose of ascertaining class members, and 

that also appears to be true. For an ascertainment analysis, we see no logical difference 

among records that do not exist and records that are unreliable, whether because of 

negligence, malfeasance or other cause. The issue for class certification is how difficult 

it would be to ascertain the identity of class members from the records. 

 “Ascertainability is required in order to give notice to putative class members as to 

whom the judgment in the action will be res judicata.” (Hicks v. Kaufman & Broad 

Home Corp. (2001) 89 Cal.App.4th 908, 914.) This is not a case where the uncertainty 

lies in identifying which employees worked overtime or which worked on relevant 

projects -- it is a case where the uncertainty lies in identifying individuals to notify in the 

first place. (Compare Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 

1193, 1208 [class ascertainable from payroll records although some may not have worked 

overtime] and Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 136 [class 

ascertainable from payroll records although some were not assigned to relevant projects] 

with Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639, 648 [class not 

ascertainable because there were no business records to identify class members].) 

 Because half of the putative class representatives admitted using false identities 

for themselves and their crew members, the trial court reasonably concluded that the task 

of identifying class members from CDI’s business records would not be easy. The 

putative class representatives cite the burden-shifting rule in Hernandez v. Mendoza

(1988) 199 Cal.App.3d 721, but that case is inapposite. Hernandez involved an 

employee who demonstrated that he had performed unpaid work; he was not required to 

prove exactly how much unpaid work because the employer failed to maintain accurate 
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payroll records. (Id. at p. 727.) Hernandez involved the calculation of damages, not the 

ascertainment of class members. 

 Quantifying damages is not a relevant concern in the evaluation of class 

certification. (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at 914.) 

Moreover, the problem of damages is manageable in a class action, but class 

ascertainment “ ‘goes to the heart’ ” of class certification. (Global Minerals & Metals 

Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858.) The critical issue is whether 

class members are “ ‘ “presently ascertainable” ’ ” so that adequate notice can be 

provided to those who would be bound by the class litigation. (Ibid.) 

 Substantial evidence supports the trial court’s determination, and the trial court 

did not abuse its discretion when it determined the class was not sufficiently 

ascertainable. 

B 

 We next turn to the commonality issues. A class action meets the “community of 

interest” test when the plaintiffs prove that common questions of law or fact predominate 

over individual ones and also that the claims of the class representatives are typical of the 

class and they can adequately represent the class. (Lockheed Martin Corp. v. Superior 

Court, supra, 29 Cal.App.4th at p. 1104.) The trial court found no community of interest 

primarily because common issues did not predominate. Although the trial court called 

adequacy of representation “not determinative,” it also expressed concern that the 

putative class representatives, who had collected and cashed paychecks and redistributed 

the cash based on their own assessments, may have interests antagonistic to those class 

members who were underpaid by the practice. 

 The putative class representatives argued in the trial court that common questions 

predominated because certain CDI policies were unlawful. They claimed CDI failed to 

record when a worker started and stopped work or took meal and rest breaks; did not pay 

for time spent loading, unloading, waiting, or traveling between jobs; and forced workers 
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to pay for their own tools. But the complaint focused on allegations that workers were 

routinely underpaid due to CDI’s practice of paying on a piece-rate per-job basis and 

falsifying time records. 

 The motion for class certification alleged a common scheme of using job bids to 

set pay parameters without respect to actual hours worked. CDI denied that this was a 

sanctioned or common practice. The trial court observed that the crew leaders had 

apparently run amok; CDI agreed, claiming it had appropriate policies and procedures in 

place and had no idea the crew leaders were not following them. 

 The trial court concluded that even if all the claims of unlawful labor practices in 

the complaint were accepted as true, there still would need to be proof that any particular 

worker was underpaid as a result. The trial court cited Frieman v. San Rafael Rock 

Quarry, Inc. (2004) 116 Cal.App.4th 29, 40, for the proposition that class certification is 

improper when variations in proof of harm require individualized evidence. 

 The putative class representatives contend the trial court improperly conflated 

liability and damages. They are correct that if liability can be established by common 

facts, individual proof of damages does not prevent class certification. (Brinker 

Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022.) But a class action is 

rarely appropriate where, after class judgment, class members “would be required to 

individually prove not only damages but also liability.” (City of San Jose v. Superior 

Court (1974) 12 Cal.3d 447, 463.) 

 The putative class representatives argue liability can be shown with timesheets 

that do not include worker start and stop times. They say CDI’s timesheets uniformly 

failed to include such information, a fact that establishes classwide liability. (Cal. Code 

Regs., tit. 8, § 11160, subd. 6(A)(1); see Industrial Welfare Com. wage order No. 16-

2001, § 6(A)(1).) We disagree. The timesheets proffered as evidence included spaces for 

start and stop times, spaces that were left blank. The putative class representatives 

admitted completing and submitting the timesheets for their crews. The trial court did 
11 

not find evidence of a uniform CDI policy unlawfully prohibiting the use of start and stop 

times; rather, it found evidence that the crew leaders had been running amok. 

 In addition, the putative class representatives claim class certification was justified 

because CDI had policies that it would not pay for travel time, waiting time, and time 

spent loading and unloading. But the cited evidence only shows that CDI initiated a 

formal policy in 2009 applying a lower rate of pay for such time, and the deposed 

company representative was not sure what the policy had been before 2009. 

 In any event, resolving these issues would not have markedly narrowed the issues 

for trial. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at 339 

[commonality standard requires comparison of issues that may be jointly tried with those 

that must be separately adjudicated].) The crux of the complaint was the alleged practice 

of disregarding wage and hour rules to pay workers on a piece-rate basis and its alleged 

result of widespread underpayment. CDI claimed to be unaware of the practice and there 

was no evidence that it was followed by anyone other than the putative class 

representatives. 

 Determining underpayment due to a piece-rate scheme would involve determining 

which workers submitted timesheets for themselves and which had timesheets submitted 

for them by others, which in turn would involve the identification problems discussed in 

part A, ante. Assuming the individual workers could be identified, there would remain a 

necessary evaluation of whether the submitted timesheets reflected actual hours worked 

and, if not, whether, for each pay period, the workers were nonetheless compensated by 

the crew leader (according to a daily or percentage rate) less than if the timesheets had 

been accurate. As the trial court concluded, this would require an individualized factual 

inquiry on a “worker-by-worker and job-by-job basis.” These circumstances did not 

improperly conflate liability and damages and were properly considered by the trial court 

as factors weighing against class certification. (Dunbar v. Albertson’s, Inc. (2006) 

141 Cal.App.4th 1422, 1427-1428 [courts deny certification when wrongfulness cannot 
12 

be determined without reference to individuals].) Because of the potential for injustice, 

trial courts must carefully weigh benefits and burdens and grant class certification 

“ ‘ “only where substantial benefits accrue both to litigants and the courts.” ’ ” (Linder v. 

Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) 

 Finally, although the trial court did not find it determinative, substantial evidence 

supports the concern that the putative class representatives may have been unable to 

adequately represent the class members who were underpaid because the crew leaders 

cashed their paychecks and redistributed the payments. The potential for conflict is 

significant given CDI’s insistence that this crew leader conduct was unauthorized. 

 On this record, the trial court did not abuse its discretion in denying class 

certification. 

DISPOSITION 

 The order denying class certification is affirmed. 

 MAURO , J. 

We concur: 

 BLEASE , Acting P. J. 

 HOCH , J.