Filed 9/28/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JAMES PAYTON,

Plaintiff and Appellant,

v.

CSI ELECTRICAL CONTRACTORS, 

INC., et al.,

Defendants and Respondents.

B284065

(Los Angeles County

Super. Ct. No. BC525050)

APPEAL from an order of the Superior Court of 

Los Angeles County. Ann I. Jones, Judge. Affirmed.

Peter R. Dion-Kindem; The Blanchard Law Group and 

Lonnie C. Blanchard, III for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. 

Novotny and Jon M. Setoguchi for Defendant and Respondent 

CSI Electrical Contractors, Inc.

Pacific Employment Law, Maureen K. Bogue and Noah 

Levin for Defendant and Respondent First Solar, Inc.

_________________________________
2

James Payton appeals from an order denying class 

certification. Payton filed this putative class action alleging wage 

and hour violations against Respondents CSI Electrical 

Contractors, Inc. (CSI) and First Solar, Inc. (First Solar)

(collectively “Respondents”). The claims arose from construction 

work on a solar farm project in San Luis Obispo County. 

Payton sought certification of two classes. The first, the 

Rest Period Class, concerned persons affected by Respondents’

alleged practice of “tacking” the required 10-minute afternoon 

rest break onto the end of the 30-minute lunch break, resulting in 

a 40-minute mid-day break rather than a separate mid-afternoon 

break. The second, the Travel Pay Class, concerned persons who 

were not paid for time spent commuting in company-provided 

buses to the construction site, allegedly in violation of union 

contracts. 

The trial court denied certification of both classes. With 

respect to the Rest Period Class, the trial court found that a class 

action was inappropriate and unworkable in light of the 

individual issues arising from evidence that particular working 

groups actually received regular afternoon breaks. With respect 

to both classes, the trial court found that Payton’s trial plan was 

inadequate and that he was not a suitable class representative. 

The trial court based this finding on Payton’s prior criminal 

convictions and the fact that he is also pursuing a personal 

wrongful discharge claim. The trial court denied Payton’s request 

to look for a new class representative in light of the age of the 

case and the other problems with the motion for class 

certification.

We affirm. Substantial evidence supports the trial court’s 

conclusion that individual questions would predominate in 

determining which class members actually have a claim for 
3

missed rest breaks. The trial court also acted within its 

discretion in finding that Payton is not an adequate class 

representative, and in denying leave to substitute another 

representative in light of the age of the case and the futility of 

doing so. 

BACKGROUND

1. Payton’s Complaint

Payton was hired on May 22, 2012, by CSI as an electrical 

and construction worker to work on the Topaz Solar Farm. He 

claims he was “effectively terminated” less than a month later on 

June 14, 2012. First Solar was the “owner, operator and 

manager” of the Topaz Solar Farm, which is located in San Luis 

Obispo County. 

Respondents provided buses that transported employees 

from employee parking lots to the jobsite. Travel time to the site 

could take up to an hour and a half. Payton claimed that 

Respondents were obligated under certain union contracts to pay 

travel time for employees who took these buses. Payton asserted 

class claims for the alleged failure to pay travel time, including 

claims for overtime compensation where warranted. 

Payton also alleged that Respondents violated applicable 

regulations governing rest periods and meal breaks by tacking 

the second of the required two daily rest breaks onto the end of 

the mid-day meal period. Payton asserted class claims for this 

alleged violation on behalf of employees who worked shifts longer 

than six hours. 

In addition to these class claims, Payton asserted an 

individual claim for wrongful termination in violation of public 

policy. Payton claimed that he suffered an injury on the job 

causing a “deep gash in his wrist.” He alleged that the injury 
4

“exposed a fault in the safety gear provided by Defendants” and 

that Respondents provided inadequate treatment. He claimed 

that his employment was terminated after he complained about 

the lack of proper safety equipment and about Respondents’ 

failure to provide him with adequate care for his injury. He 

further claimed that Respondents falsely reported the reason for 

the termination as a “ ‘reduction of workforce.’ ” 

2. Payton’s Motion for Class Certification

Payton filed a motion seeking certification of two classes. 

The Rest Period Class was allegedly composed of “All persons 

employed by CSI in the State of California as construction 

workers at the Topaz Solar Farm during the period from 

October 21, 2009 to the date . . . the class is certified who do not 

opt out and who worked a shift longer than six hours.” The 

Travel Pay Class allegedly consisted of “All persons employed by 

CSI in the State of California as construction workers at the 

Topaz Solar Farm during the period from October 21, 2009 to the 

date . . . the class is certified who do not opt out and who traveled 

to or from the work site using transportation provided [by] CSI or 

First Solar.” 

With respect to the Rest Period Class, Payton claimed that 

the tacked break policy violated paragraph 11 of Industrial 

Welfare Commission wage order No. 16-2001 (Wage Order 16). 

That paragraph states in relevant part that “Every employer 

shall authorize and permit all employees to take rest periods, 

which insofar as practicable, shall be in the middle of each work 

period. Nothing in this provision shall prevent an employer from 

staggering rest periods to avoid interruption in the flow of work 

and to maintain continuous operations, or from scheduling rest 

periods to coincide with breaks in the flow of work that occur in 

the course of the workday. The authorized rest period time shall 
5

be based on the total hours worked daily at the rate of ten (10) 

minutes net rest time for every four (4) hours worked, or major 

fraction thereof.” (Cal. Code Regs., tit. 8, § 11160, subd. 11(A).) 

Payton claimed that, under Labor Code section 226.7, 

Respondents “must pay one additional hour of compensation for 

each work day that the rest period is not provided.” 

With respect to the Travel Pay Class, Payton argued that 

Respondents were obligated to pay for travel time under several 

union agreements. The pertinent provision in those agreements 

stated that “[t]he Employer shall pay for traveling time and 

furnish transportation from shop to job, job to job, and job to 

shop. Travel time shall be at the appropriate rate of pay for that 

day of the week.” 

Payton supported the motion with his own declaration 

stating that he received only a “tacked” afternoon break on the

job and was not paid for his travel time on the company buses. 

He also submitted excerpts from the deposition of CSI’s corporate 

representative, Michael While, who testified in response to a 

question about “ ‘all of the meal break practices at the Topaz 

site.’ ” While stated that “[t]he employees would take a — a 

break at 9:30. Employees would take lunch at 12:00 o’clock. And 

then they would pick up at the end of the day to go home. [¶] 

Q Okay. Was a rest break provided in the afternoon similar to 

the 9:30 rest break? [¶] A It was tacked onto the lunch break, 

so the employees would take a 40-minute lunch. [¶] Q Okay. 

The practice of the Topaz site was that there would be a 30-

minute lunch break, plus a simultaneous ten-minute rest break 

extending the whole period to 40 minutes, and there would be no 

separate rest break in the afternoon; correct? [¶] A Correct. On 

an eight hour day.” While also testified that he communicated 

this practice to new employees at their orientation. 
6

3. Respondents’ Opposition

Respondents denied that there was a policy at the Topaz 

construction site to deprive workers of an afternoon break. 

Respondents submitted declarations from numerous employees 

testifying that they always received afternoon breaks separate 

from the lunch break. The declarations included testimony by a 

union business manager that part of his job was to ensure that 

employees took their afternoon breaks. 

Respondents also submitted a declaration from While 

explaining his deposition testimony. While explained that his 

testimony about the practice of tacked afternoon breaks “referred 

to scheduled, site-wide breaks.” He said that he “did not 

understand counsel to be asking me about, and I did not testify 

regarding, afternoon breaks taken at the crew or individual level, 

rather than on a site-wide basis.” He explained that, “[w]hile 

additional afternoon breaks were not scheduled on a site-wide 

basis, individual workers and crews were always permitted to 

take additional afternoon rest breaks, as needed, consistent with 

the work being performed on any given day.” He personally

observed crews taking afternoon breaks between 2:00 p.m. and 

3:00 p.m. 

With respect to Payton’s alleged Travel Pay Class, 

Respondents denied that the travel pay provision on which 

Payton relied was applicable. They also argued that the claim for 

travel pay was preempted by federal law because it involved the 

alleged interpretation and breach of a collective bargaining 

agreement. In addition, they asserted that the claim was barred 

by the doctrine of judicial estoppel, because in opposing remand of 

the case following removal to federal court Payton represented 

that he did not seek relief under collective bargaining 

agreements. 
7

4. The Trial Court’s Ruling

The trial court denied Payton’s motion on several grounds. 

First, with respect to the Rest Period Class, the court found that 

individual issues would predominate in determining which 

employees were not permitted to take afternoon rest breaks. The 

trial court credited Respondents’ employee declarations and 

While’s explanation of his deposition testimony and concluded 

that, based on that evidence, “trial would turn into an individualby-individual exercise.” The court also concluded that the 

question of the nature of the afternoon breaks the employees 

received—whether they were “recovery” breaks or regularly 

scheduled “rest breaks”—was “highly individualized.” Moreover, 

in light of the provision in Wage Order 16 that rest breaks may be 

staggered “to avoid interruption in the flow of work,” individual 

inquiry would be necessary to determine if tacked rest breaks 

were consistent with work performed by particular crews. 

For the same reasons, the trial court also found that the 

Rest Period Class was not ascertainable, because individual 

issues would govern which class members actually had a claim for

missed rest breaks. 

With respect to the Travel Pay Class, the trial court denied 

Respondents’ arguments that individual issues predominated. 

The court concluded that issues concerning Respondents’ 

obligations, if any, under the union agreements, as well as those 

concerning Respondents’ preemption and judicial estoppel 

defenses, “are all common issues capable of class-wide 

determination.” 

However, the trial court found that Payton was not a 

suitable class representative for either of the alleged classes. 

Payton previously served an eight-year prison sentence for “lewd 

and lascivious acts with a child under 14” and a three-month 
8

sentence for felony marijuana sale. He also had a prior 

misdemeanor conviction from a parole violation for failing to 

register as a sex offender. Although the felony convictions were 

old (between 19 and 22 years old according to Payton), the trial 

court concluded that they raised a disqualifying credibility issue. 

The trial court also found that Payton’s claims were not 

typical of the class, as his individual wrongful discharge claim 

was likely to detract attention from the class wage and hour 

claims. The court declined Payton’s request to look for a new 

class representative, concluding that permission to amend the 

complaint “in this almost 4-year-old case” would be futile given 

the other problems with the class certification motion. 

Finally, the trial court found that Payton had not submitted 

an adequate trial plan for handling individual issues. 

DISCUSSION

1. Legal Standards

A class action is permitted under Code of Civil Procedure 

section 382 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.” Consistent 

with this provision, our Supreme Court has instructed that a 

party seeking certification of a class 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 (Brinker).) The “community of interest” 

requirement in turn 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 
9

representatives who can adequately represent the class. (Ibid.) 

The “ultimate question” in assessing predominance 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.’ ” (Duran v. U.S. Bank 

National Assn. (2014) 59 Cal.4th 1, 28 (Duran).) 

In addition to these requirements, a court considering a 

class certification motion must also “conclude that litigation of 

individual issues, including those arising from affirmative 

defenses, can be managed fairly and efficiently.” (Duran, supra, 

59 Cal.4th at pp. 28–29.) In the context of a wage and hour case 

“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.” (Id. at p. 29.) 

An appellate court’s review of a class certification order is 

“narrowly circumscribed.” (Brinker, supra, 53 Cal.4th at p. 1022.) 

“ ‘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.’ ” 

(Ibid., quoting Fireside Bank v. Superior Court (2007) 40 Cal.4th 

1069, 1089 (Fireside Bank).) A trial court’s ruling supported by 

substantial evidence will not generally be disturbed on appeal 

unless it was “ ‘based upon improper criteria or incorrect

assumptions.’ ” (Brinker, at p. 1050.)
10

2. Individual Questions Predominate in 

Identifying the Persons Affected by the Alleged 

Rest Break Violation

Payton argues that Respondents’ liability for the tacked

rest break policy is a common issue that justifies certification of 

the Rest Period Class. The trial court rejected this argument, 

finding that individual issues would predominate because

employees in particular working groups were permitted to take 

work breaks during the afternoon.

Substantial evidence supports the trial court’s finding. 

Respondents submitted declarations attesting to regular 

afternoon breaks from workers in a number of different crews, 

including foremen in supervisory positions. 

Importantly, Respondents also submitted evidence

supporting the conclusion that mid-afternoon breaks were

systematically enforced. As the trial court noted, “Mark Simonin, 

the business manager for IBEW Local 639, states, inter alia, that 

‘[o]ver the course of the project, [he] personally observed and 

ensured that CSI’s workers (and other IBEW workers) 

consistently took non-tacked afternoon rest breaks, separate and 

apart from their meal periods.” Simonin testified that “[p]art of 

my job (and the job of the union stewards on the site) was to 

ensure that workers took their afternoon breaks.” Another 

employee testified that an afternoon rest break was “CSI practice 

and required by the IBEW.” 

The trial court was entitled to credit such evidence. Based 

on that evidence, the trial court reasonably concluded that 

individual issues would predominate. Individual workers who 

were given regular, scheduled mid-afternoon breaks have no 

claim against Respondents, because Respondents did not deny 

them their rights under Wage Order 16. As the trial court 
11

observed, separating those individuals from persons who received

no mid-afternoon break would “turn into an individual-byindividual exercise.” 

Thus, Payton is incorrect in claiming that the existence of a

site-wide tacked break policy itself was sufficient to prove liability 

on a common basis. Even assuming that a single tacked 

afternoon rest break was unlawful, the relevant question for 

liability is whether there was a uniform policy for workers to 

receive only such a break. Workers who received a mid-afternoon 

break either instead of, or in addition to, the tacked rest break 

did not suffer a violation under Payton’s theory. Certainly 

Payton could not prove a violation by showing that Respondents 

permitted more rest periods than Wage Order 16 requires. 

Permitting proof of class-wide liability based only on the 

existence of the site-wide tacked break policy would violate the 

fundamental principle that “the class action procedural device 

may not be used to abridge a party’s substantive rights.” (Duran, 

supra, 59 Cal.4th at p. 34.) As our Supreme Court explained in 

City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462, 

“[c]lass actions are provided only as a means to enforce 

substantive law. Altering the substantive law to accommodate 

procedure would be to confuse the means with the ends—to 

sacrifice the goal for the going.” The class action device may not 

be used here to provide relief to class members who actually 

suffered no violation because they were given the regular rest 

breaks that the law requires. 

Payton argues that the trial court improperly ignored his 

theory of liability, which he describes as “a common contention[] 

that CSI violated California labor laws by failing to provide 

employees with the required afternoon rest periods that were 

required to be in the middle of the afternoon by tacking the 
12

afternoon rest period onto the end of the noon meal period.” (See 

Brinker, supra, 53 Cal.4th at p. 1033 [“[t]he theory of liability—

that Brinker has a uniform policy, and that that policy, measured 

against wage order requirements, allegedly violates the law—is 

by its nature a common question eminently suited for class

treatment”].) But a class plaintiff’s theory of common proof must 

be more than wishful thinking; it must have a foundation in the 

evidence. As the court explained in Cruz v. Sun World Internat., 

LLC (2015) 243 Cal.App.4th 367, plaintiffs “may not simply

allege” a uniform policy or practice, but must “present substantial 

evidence that proving both the existence of the defendant’s 

uniform policy or practice and the alleged illegal effects of that 

policy or practice could be accomplished efficiently and 

manageably within a class setting.” (Id. at p. 384.) 

In Brinker, the court instructed that a court must examine 

the plaintiff’s complaint “and supporting declarations” in 

determining whether the “ ‘theory of recovery advanced by the 

proponents of certification is, as an analytical matter, likely to 

prove amenable to class treatment.’ ” (Id. at p. 1021, italics 

added.) The court noted that the existence of a “common, uniform 

rest break policy” was conceded in that case. (Id. at p. 1033.) In 

contrast to this rest break class, the court reversed the trial 

court’s certification of a subclass of employees who were allegedly 

required to work during meal periods because there was no 

evidence of any actual “systematic company policy to pressure or 

require employees to work off-the-clock.” (Id. at p. 1051.) 

Here, the trial court made findings contradicting Payton’s 

theory that CSI implemented a uniform policy denying a midafternoon rest break. Because these findings were supported by 

substantial evidence, we will not reverse them. 
13

Payton also argues that the evidence merely shows that 

some class members were able to take “ad hoc” afternoon breaks. 

Payton argues that this evidence therefore shows only a variation 

in individual damages. Payton cites the general rule that, “ ‘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.) 

This argument ignores the substantial employee testimony 

that afternoon breaks were not simply “ad hoc,” but were 

regularly implemented as a matter of practice. As mentioned, 

that evidence included testimony from the union business 

manager—which the trial court credited—supporting the 

conclusion that the mid-afternoon rest break was consistently 

enforced. 

Thus, the facts here are different than in cases that Payton 

cites where a common unlawful policy existed. In those cases, 

individual issues arose only because it was “necessary to 

determine whether individual employees were able to take breaks 

despite the defendant’s allegedly unlawful policy (or unlawful lack 

of a policy).” (Benton v. Telecom Network Specialists, Inc. (2013) 

220 Cal.App.4th 701, 726, italics added; see also Faulkinbury v. 

Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 233 [evidence 

established that the employer had a “uniform policy of requiring 

all security guard employees to take paid, on-duty meal breaks”]; 

Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 

388, 413 [evidence of a common de facto policy to deny breaks].) 

In contrast, in this case the evidence supports the 

conclusion that individual questions would predominate in the 

proof of liability, not just damages. Even under Payton’s theory, 

the site-wide tacked rest break policy was only unlawful if it was 
14

the only break that employees were provided. Respondents could

not be liable to employees who were given the opportunity for 

regularly scheduled mid-afternoon breaks in compliance with the 

law. 

The existence of any common policy is not sufficient to show 

that common issues predominate. The policy in question must be 

a means to establish liability on a class-wide basis. (See Kizer v. 

Tristar Risk Management (2017) 13 Cal.App.5th 830, 843 [even if 

defendant had an unlawful policy of misclassifying workers as 

exempt, no common theory of liability for withheld overtime pay 

existed in the absence of common proof that class members were 

actually required to work overtime].) 

Thus, we affirm the trial court’s ruling that individual 

issues predominate with respect to the Rest Break Class, and 

that the class therefore could not be certified. We therefore need 

not consider the trial court’s ruling that the Rest Break Class was 

overbroad and therefore not ascertainable.1

 

1 In any event, the trial court’s analysis on the issue of 

ascertainability was essentially the same as its analysis of 

predominance. The trial court found that the class was overbroad 

because Payton “has not shown how he would identify employees 

who suffered rest period violations.” The court cited authority 

holding that, no matter how a class is actually defined, if it is 

overbroad because it includes those who do not have claims, and 

those persons can only be identified through individual inquiry, 

the class is not ascertainable. (See, e.g., Miller v. Bank of 

America, N.A. (2013) 213 Cal.App.4th 1, 7.) 
15

3. The Trial Court Acted Within Its Discretion in 

Rejecting Payton’s Proposed Trial Plan

In Duran, supra, our Supreme Court explained that a trial 

court deciding whether to certify a class “must consider not just 

whether common questions exist, but also whether it will be 

feasible to try the case as a class action.” (59 Cal.4th at p. 27.) 

The court cautioned that, “[i]n 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.” (Id. at p. 29.) 

Consistent with the principle that the class action procedure may 

not be used to abrogate a defendant’s substantive rights, “a class 

action trial management plan may not foreclose the litigation of 

relevant affirmative defenses, even when these defenses turn on 

individual questions.” (Id. at p. 34.)

The trial court cited Duran in concluding that Payton’s 

proposed trial plan was inadequate. That conclusion was within 

its discretion.

Payton’s proposed trial plan was simply a general outline of 

a two-phased trial. The first phase would concern “[p]roof of the 

common policy or practices questions.” Payton proposed that 

these issues would be determined by “the testimony of the 

Plaintiff” along with testimony of Respondent’s “PMK’s” (i.e., 

persons most knowledgeable) and various defense documents. 

Payton stated that he did not intend to call any experts unless 

the final trial plan or “the data produced by Defendants” called 

for them. 

The proposed second phase of the trial would concern

damages. Payton proposed a special master who would “make 

findings of fact for the members of the classes who participate in 

Phase Two.” The findings would include the “number of second 
16

rest periods to which each class member was entitled and the rest 

period premiums payable to each class member” and the “number 

of travel time hours each class member incurred when using the 

employer-provided transportation system and the amount of 

unpaid wages due each class member for such travel time.” 

Payton’s proposed trial plan contained no discussion of any 

particular procedural device other than the idea of a two-phased 

trial and the use of a special master. As the trial court explained, 

the proposed plan did not contain any “ ‘explanation of the 

specific procedural tools to ensure his plan is valid and 

sufficiently rigorous.’ ” Nor did it contain any “ ‘basis for the 

factfinder to move from quantities of data to conclusions about 

liability to the class.’ ” Most critically, the proposed plan “fail[ed] 

to show how the individualized issues arising from Defendants’ 

defenses can be managed.” 

With respect to the Rest Period Class, Payton’s proposed 

plan provided no procedure to decide the individual issues 

concerning employees who in fact took regular, scheduled 

afternoon breaks. Payton argues that no such procedure was 

necessary because, once the unlawfulness of the tacking practice 

was established, each class member’s damages could be 

calculated simply by multiplying each person’s hourly rate by the 

number of shifts he or she worked. As discussed above, such an 

approach is impermissible because it would permit recovery by

class members who do not actually have claims for missed rest 

breaks. 

The proposed trial plan also failed to explain how the court 

could manage any individual issues concerning the Travel Pay 

Class. Although the trial court found that individual issues do 

not predominate with respect to that class, Payton did not 
17

propose any specific procedure to adjudicate any individual 

defenses that nevertheless might arise. 

Payton argues that, if he were successful in establishing the

common issue of the right to travel pay for those who rode the 

company buses, company ridership logs would provide sufficient 

information about who was entitled to such pay and in what 

amounts. However, the logs that he cites are sign-in sheets for 

each bus trip containing employees’ signatures. Many of those 

signatures are illegible. Some procedure would be necessary to 

decipher the signatures, count the bus rides that each employee 

took and their length, and compute the amount due based upon 

the individual employees’ hourly pay, the length of each ride, and 

the number of hours the employee worked that day (for 

computation of any overtime). This procedure would also need to 

include a mechanism to resolve any factual disputes concerning 

the identity of particular persons who rode the company-provided 

buses if disagreements arose about interpretation of the

signatures. 

Payton did not identify any experts or even state any firm 

intention to employ experts. Indeed, he did not propose any

procedure for determining individual class members’ entitlement 

to travel pay as part of the judicial proceedings. He relied solely 

on the proposal for a special master. However, as the trial court 

correctly noted, “derogation of the Court’s authority cannot be 

assumed.” Appointment of a special master under section 638 

requires agreement by the parties, as the “ ‘primary effect of such 

a reference is to require trial by a referee and not by a court or 

jury. [Citation].’ ” (O’Donoghue v. Superior Court (2013) 219 

Cal.App.4th 245, 255, quoting Treo @ Kettner Homeowners Assn. 

v. Superior Court (2008) 166 Cal.App.4th 1055, 1061.) Thus, 

Payton did not propose any means to resolve individual factual 
18

disputes designed to protect Respondents’ right to challenge 

Payton’s proof. 

4. The Trial Court Acted Within Its Discretion in 

Finding That Payton Is Not an Acceptable Class 

Representative

The trial court found that Payton’s claims were not typical 

of the class and that he was not an adequate class representative. 

The court based its findings primarily on: (1) Payton’s individual 

wrongful discharge claim; (2) his prior criminal convictions; and 

(3) his failure to disclose one of those convictions on his 

apprenticeship application.2 These findings were within the 

court’s discretion.

Our Supreme Court has explained that whether a class 

representative is subject to unique defenses “is one factor to be 

considered in deciding the propriety of certification.” (Fireside 

Bank, supra, 40 Cal.4th at p. 1090.) The danger that such 

defenses pose is that the representative might focus on his or her 

unique issues to the detriment of the issues common to the class, 

and that a major focus of the litigation will be on the unique 

issues. (Ibid.)

We agree with the trial court that the same concerns can 

apply to a class representative’s unique claims. The relevant 

question is whether issues unique to the class representative will 

become a major focus at trial distracting from prosecution of the 

class claims.

 

2 The trial court also found atypical Payton’s allegation that 

he was jointly employed by CSI and First Solar. Because of our 

ruling affirming the trial court’s findings of lack of typicality and 

inadequacy on other grounds, we need not reach this issue. 
19

The trial court reasonably found that Payton’s wrongful 

discharge claim posed that danger here. The court reasoned that 

the credibility battle over the real reason for Payton’s termination

would distract from the rest break and travel pay issues common 

to the class. The potential distraction was heightened by the 

credibility issues associated with Payton’s failure to disclose his 

conviction for sale of marijuana on his union apprenticeship 

application.3

That failure to disclose, along with the criminal convictions 

themselves, also support the trial court’s conclusion that Payton 

was not an adequate class representative. Credibility problems 

can be an appropriate ground to reject the adequacy of a class 

representative. (Jaimez v. Daiohs USA, Inc. (2010) 181

Cal.App.4th 1286, 1308 (Jaimez).) In Jaimez, the court concluded 

that the named plaintiff was not a suitable class representative 

because he failed to disclose prior criminal convictions on his 

employment application. (Id. at pp. 1293–1294, 1307–1308.) The 

evidence shows a similar failure to disclose here. Payton 

proffered an explanation for that failure, but the explanation 

could also have become the focus of a credibility battle. 

 

3 On his 2011 apprenticeship application, Payton disclosed 

prior convictions only for “lewd sex act” and “failure to register” in 

response to a question about prior felony convictions. In a 

supplemental declaration below, Payton stated that he did not list

the marijuana conviction because he understood that the felony 

marijuana conviction “was supposed [to] be reduced to a 

misdemeanor after I served my sentence and completed my 

probation, and it did not occur to me that I needed to report it.” 
20

The convictions themselves could also seriously detract 

from Payton’s credibility. Contrary to Payton’s argument, his 

felony convictions, even though old, would be admissible for 

impeachment purposes at the discretion of the trial court. (Evid. 

Code, § 788.) His eight-year sentence for lewd and lascivious acts 

with a child under 14 is particularly serious, and, if permitted by 

the trial court, would likely have been a prominent feature in his 

cross-examination. 

We therefore affirm the trial court’s finding that Payton 

was not a suitable class representative. 

5. The Trial Court Acted Within Its Discretion in 

Denying Leave to Search for Another Class 

Representative

After concluding that Payton was not an adequate class 

representative, the trial court considered his request to substitute

a new representative. The trial court concluded that, “given the 

other problems with the motion for class certification, allowing 

Plaintiff to locate a new class representative in this almost 

4-year-old case would be futile.” We conclude that, under the

circumstances of this case, the trial court acted within its 

discretion in denying Payton’s request to amend the complaint to 

add a new class representative. 

As the trial court noted, the court in Jones v. Farmers Ins.

Exchange (2013) 221 Cal.App.4th 986 (Jones) held that “[t]he lack 

of an adequate class representative . . . does not justify the denial 

of the class certification motion. Instead, the trial court must 

allow Plaintiff[] an opportunity to amend [his] complaint to name 

a suitable class representative. [Citation & fn. omitted.] The 

court should then grant the class certification motion if it 

approves a class representative.” (Id. at p. 999.) However, along 

with the trial court, we do not understand this statement to be a 
21

description of an absolute rule that a trial court must grant leave 

to amend to add a new class representative in every case in which 

a court concludes that the named plaintiff is inadequate. 

In Jones, the court cited our Supreme Court’s opinion in 

La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864 

(La Sala). That case concerned a situation in which the

defendant in a putative class action attempted to disqualify the 

named plaintiffs by offering them individual relief that would 

make their claims atypical. The court rejected this tactic, 

concluding that the relief the named plaintiffs received did not 

render them “unfit per se to continue to represent the class.” (Id. 

at p. 871.) The court left to the trial court’s discretion on remand 

whether the named plaintiffs could continue to “fairly and 

adequately” protect the class. (Ibid.) The court also directed 

that, if the trial court concluded that the named plaintiffs were no 

longer suitable, “it should at least afford plaintiffs the 

opportunity to amend their complaint, to redefine the class, or to 

add new individual plaintiffs, or both, in order to establish a 

suitable representative.” (Id. at p. 872.) 

The court reached a similar conclusion in Kagan v. 

Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582, 593. The court 

held that a defendant was not permitted to “pick off” a class 

representative in an action under the Consumer Legal Remedies 

Act by providing individual relief to the named plaintiff. As in 

La Sala, the court left to the trial court to determine whether the 

plaintiff could continue to represent the class. (Kagan, 35 Cal.3d 

at p. 596.) And, as in La Sala, the court directed that, if the trial 

court found that the plaintiff was not a suitable class 

representative, it should provide an opportunity to amend to 

“ ‘establish a suitable representative.’ ” (Kagan, 35 Cal.3d at 

p. 596, quoting La Sala, supra, 5 Cal.3d at p. 872.)
22

Providing an opportunity to amend makes sense when a 

named plaintiff is disqualified as a result of a defense strategy to 

defeat a class action by offering individual relief. Without such 

an opportunity, defendants could manipulate the class action 

procedure to avoid class claims. (See Larner v. Los Angeles 

Doctors Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 

1299 [the rule permitting amendment to substitute a new class 

representative “prevents a prospective defendant from avoiding a 

class action by ‘picking off’ prospective class action plaintiffs one 

by one, settling each individual claim in an attempt to disqualify 

the named plaintiff as a class representative”].) That concern 

does not apply here. The trial court disqualified Payton because 

of his own background and conduct, not because of any defense 

manipulation. 

An absolute rule requiring substitution of a new class 

representative after a ruling that the named plaintiff is 

inadequate would be inconsistent with the general principle that 

a trial court has discretion in deciding whether to permit an 

amended complaint. (See Record v. Reason (1999) 73 Cal.App.4th 

472, 486 (Record) [trial court “ ‘has wide discretion in allowing the

amendment of any pleading [citations], [and] as a matter of policy 

the ruling of the trial court in such matters will be upheld unless 

a manifest or gross abuse of discretion is shown’ ”], quoting 

Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135–136.) 

The general principles governing the amendment of a 

complaint apply to the decision whether to permit an amendment 

naming a new class representative. In California Gasoline 

Retailers v. Regal Petroleum Corp. (1958) 50 Cal.2d 844 (Gasoline 

Retailers), the court reviewed the trial court’s decision to 

substitute a new class representative under the procedure for 

amending a complaint under section 473. (Id. at p. 851.) The 
23

court noted that, under that procedure, a trial court may permit 

an amendment “in its discretion” even after trial. (Ibid., citing 

Feigen v. Kutchor (1951) 105 Cal.App.2d 744, 747–748.) The 

court concluded that the amendment adding the new 

representative in that case did not prejudice the defendants, and 

that the trial court “did not abuse its discretion in permitting the 

amendment” to conform to proof. (Gasoline Retailers, at p. 851;

4

see also Jaimez, supra, 181 Cal.App.4th at p. 1308 [applying rules 

governing the amendment of a complaint in ruling that the trial 

court abused its discretion in denying leave to substitute a new 

class representative]; Safeco Ins. Co. of America v. Superior Court 

(2009) 173 Cal.App.4th 814, 835 [leaving “to the sound discretion 

of the trial court” on remand whether to grant a motion to amend 

the complaint to substitute a new class representative].) 

Leave to amend a complaint should be given liberally. 

(Gasoline Retailers, supra, 50 Cal.2d at p. 851; Nestle v. City of 

Santa Monica (1972) 6 Cal.3d 920, 938–939.) However, there are 

circumstances in which leave to amend is properly denied. In 

particular, denying a request to amend a complaint may be 

appropriate when an unreasonable delay in seeking amendment 

prejudices the defendant. (Ibid.; Record, supra, 73 Cal.App.4th at 

pp. 486–487 [leave to amend properly denied where plaintiff was 

aware of the circumstances supporting the amendment when he 

filed his original complaint three years previously].) 

 

4 In La Sala, supra, the court cited Gasoline Retailers in 

holding that the plaintiffs should be permitted an opportunity to 

amend if the trial court found the named plaintiff unsuitable. 

(La Sala, supra, 5 Cal.3d at p. 872.)
24

Prejudice can include the time and expense associated with 

opposing a legal theory that a plaintiff belatedly seeks to change. 

For example, in Melican v. Regents of University of California 

(2007) 151 Cal.App.4th 168 (Melican), the court concluded that 

the trial court acted within its discretion in denying the plaintiff’s 

oral request to amend the complaint during a summary judgment 

hearing. The plaintiff had known about the underlying facts for 

five years, and permitting the amendment at that point would 

have required the defendants to shoot at a “moving target” in 

their summary judgment motion. (Id. at p. 176.)

a. Payton’s Delay in Seeking to Amend

One of the grounds that the trial court identified here for 

denying Payton’s request to find a new class representative was 

the length of time this action has been pending. The trial court 

could properly rely on the age of the case in denying Payton’s 

request to find a new class representative. 

This action was originally filed in October 2013, nearly 

three years before Payton filed his motion for class certification. 

The record does not reflect when plaintiff’s counsel learned of 

Payton’s prior convictions. However, the convictions were part of

the discovery record in this case at least by August 25, 2015,

when Payton testified about them during his deposition. That 

was a year before Payton filed his motion for class certification on 

August 1, 2016. It was predictable that Payton’s criminal 

convictions—along with his separate wrongful discharge claim—

would be a point of contention in seeking class certification, and 

might disqualify Payton as a class representative. Yet Payton 

proceeded with his motion for class certification without any 

attempt to add or substitute a new class representative before 

filing.
25

Permitting Payton to amend now, after Respondents 

successfully opposed the original class certification motion, would 

require Respondents to shoot at a “moving target” in opposing 

certification. (See Melican, supra, 151 Cal.App.4th at p. 176.) 

The reasoning of the court in In re Flash Memory Antitrust Litig. 

(N.D. Cal. June 9, 2010) No. C 07-0086 SBA, 2010 U.S. Dist. 

LEXIS 59491, is helpful here.5 In that case, the court denied a 

motion to amend the complaint to substitute new plaintiffs in a 

multi-state antitrust class action. (2010 U.S. Dist. LEXIS 59491 

at **69–70.) The plaintiffs filed the motion contemporaneously 

with their motion for class certification. (Id. at *75.) The court 

concluded that the substitution would “unduly prejudice 

Defendants, who have been preparing their defense based on the 

identities of the class representatives identified in the pleadings. 

Allowing Plaintiffs to ‘swap out’ certain class representatives at 

this juncture would require Defendants to conduct new and/or 

additional discovery that would not otherwise have been required 

had Plaintiffs joined the appropriate representatives in the first 

instance.” (Id. at *74.) The court observed that the plaintiffs 

should have determined the qualifications of the class 

representatives “at the inception of the litigation, not years after 

the action had commenced.” (Id. at *75; see also Giron v. 

 

5 In the absence of California authority concerning class 

action issues, “ ‘California courts may look to the Federal Rules of 

Civil Procedure . . . and to the federal cases interpreting them 

[citation].’ ” (Ticconi v. Blue Shield of California Life & Health 

Ins. Co. (2008) 160 Cal.App.4th 528, 546, quoting Weil & Brown, 

Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 

Group 2007) ¶ 14:11.20, p. 14-9.)
26

Hong Kong & Shanghai Bank Co. (C.D. Cal. Nov. 15, 2017) No. 

2:15-CV-08869-ODW(JC), 2017 U.S. Dist. LEXIS 189087, at *41

[denying plaintiffs’ motion to substitute class representatives 

where, “despite adequate opportunity to identify and propose 

different class representatives, they chose to file their Motion to 

Certify Class, and only raised the possibility of different class 

representatives when substantively challenged regarding their 

typicality and adequacy”].)

Here, Payton should have sought to add or substitute a 

more suitable class representative before filing his motion for 

class certification. The trial court did not abuse its discretion in 

denying Payton’s request to amend the complaint made only after 

Respondents challenged his qualifications as a class 

representative in opposing the motion to certify the class. 

b. Futility of an Amendment

In denying Payton’s request to amend the complaint to 

substitute a new class representative, the trial court also cited 

“the other problems with the motion for class certification” that 

would make an amendment futile. The futility of a proposed 

amendment can provide a ground to deny a request to amend. 

(Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1437.) 

The predominance of individual issues made any 

amendment futile with respect to the Rest Period Class. The 

individual issues in proving injury were unrelated to the identity 

of the class representative, and could not have been cured by 

filing an amended complaint. 

The trial court did not find the same predominance issues 

with respect to the Travel Pay Class. However, the trial court did 

reject Payton’s proposed trial plan, which concerned both alleged 

classes. As discussed above, the trial court acted within its 
27

discretion in doing so. An amended complaint also could not have

cured the defective trial plan. 

Nor was the trial court required to give Payton another 

opportunity to provide an acceptable trial plan. The problems 

with Payton’s proposed plan for the Travel Pay Class did not 

suggest that an acceptable plan was impossible for that class; 

company records apparently do exist that might be used to 

identify who rode the company buses on what days. However, a 

plaintiff in a California class action ordinarily gets one shot at a 

class certification motion. (See Stephen v. Enterprise Rent-A-Car 

(1991) 235 Cal.App.3d 806, 811 [“no policy in the law allowed [the 

plaintiff] to ‘renew’ a class certification motion which had been 

denied on the merits by a final, appealable order”].) It would 

certainly be anomalous to require the trial court to provide a 

second chance to file an acceptable certification motion simply 

because a plaintiff created an additional problem by naming an 

unacceptable class representative. 

DISPOSITION

The trial court’s order denying class certification is 

affirmed. Respondents are entitled to their costs on appeal. 

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J. HOFFSTADT, J.