Filed 12/4/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

VON HILDEBRANDT,

Plaintiff and Appellant,

v.

STAPLES THE OFFICE 

SUPERSTORE, LLC,

Defendant and Respondent.

B294642

Los Angeles County

Super. Ct. No. BC666236

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Yvette M. Palazuelos, Judge. Reversed

in part, affirmed in part.

Schneider Wallace Cottrell Konecky & Wotkyns, Todd M. 

Schneider, Carolyn H. Cottrell and David C. Leimbach; Boucher, 

Raymond P. Boucher, Maria L. Weitz, Neil M. Larsen and 

Alexander Gamez for Plaintiff and Appellant.

Morrison & Foerster, Miriam A. Vogel, Tritia M. Murata, 

David P. Zins and Karen J. Kubin for Defendant and Respondent.

_________________________
2

Plaintiff Von Hildebrandt appeals a summary judgment 

entered in favor of defendant Staples the Office Superstore, LLC 

(Staples). The trial court determined all of Hildebrandt’s claims 

were barred by the applicable statutes of limitations and the 

pendency of related class actions did not toll the limitations 

periods. We conclude the trial court erred in applying the class 

action tolling rules articulated in Jolly v. Eli Lilly & Co. (1988) 

44 Cal.3d 1103 (Jolly). 

Because Hildebrandt concedes his claim for failure to 

furnish accurate itemized wage statements (see Lab. Code, § 226) 

is time barred, even if tolling applies, we will affirm the summary 

adjudication of that claim.

1 In all other respects the summary 

judgment is reversed.

FACTS AND PROCEDURAL BACKGROUND

“Because this case comes before us after the trial court 

granted a motion for summary judgment, we take the facts 

from the record that was before the trial court when it ruled 

on that motion. [Citation.] ‘ “We review the trial court’s decision 

de novo, considering all the evidence set forth in the moving 

and opposing papers except that to which objections were made 

and sustained.” ’ [Citation.] We liberally construe the evidence 

in support of the party opposing summary judgment and resolve 

doubts concerning the evidence in favor of that party.” (Yanowitz 

v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) 

1 Staples separately moved for summary adjudication of 

each claim.
3

1. The Parties

Staples is a global provider of office products and services. 

Its Superstores are big-box retail stores catering to individual 

customers and business clients. By mid-2018, Staples operated 

more than 160 Superstores across California. The general 

manager is the highest-level manager in a Superstore and 

the only manager that Staples classifies as exempt from overtime 

pay and meal and rest break requirements. General managers 

are responsible for managing every aspect of a store’s operation.

Hildebrandt worked as a salaried general manager 

for Staples from April 24, 2000 to June 20, 2013. During his 

employment, Hildebrandt worked at several Staples locations 

in California.

2. The Hatgis and Wesson Putative Class Actions

On March 11, 2014, Dianne Hatgis, a former Staples Copy 

and Print Shop general manger, filed a putative class action 

on behalf of all people employed as general managers at Staples 

“retail locations” in California. Hatgis asserted claims on behalf 

of herself and the putative class members for (1) failure to pay 

overtime compensation (Lab. Code, § 510); (2) failure to authorize

and permit rest periods (id., § 226.7); (3) failure to provide 

meal periods (id., §§ 226.7 & 512); (4) failure to furnish accurate 

itemized wage statements (id., § 226); (5) failure to timely pay 

wages upon termination or resignation (id., §§ 201–203); and 

(6) violation of the unfair competition law (UCL) (Bus. & Prof. 

Code, § 17200). Hatgis premised her claims on the allegation 

that Staples misclassified its general managers as exempt 

employees.

On July 6, 2015, the trial court in the Hatgis action granted 

Staples’s motion to limit the putative class to Staples Copy and 
4

Print Shop general managers only. On October 23, 2015, Hatgis 

voluntarily dismissed her class claims without prejudice.

On September 4, 2015, Fred Wesson, a Staples general 

manager, filed a putative class action against Staples on behalf 

of all current and former general managers at Staples Superstore 

retail locations in California who were employed on or after

May 10, 2010. Like Hatgis, Wesson asserted causes of action for 

(1) failure to pay overtime compensation; (2) failure to authorize 

and permit rest periods; (3) failure to provide meal periods; 

(4) failure to furnish accurate itemized wage statements; and 

(5) violation of the UCL. He alleged Staples misclassified its 

Superstore general managers as exempt employees to avoid 

paying overtime compensation and to avoid providing meal 

and rest breaks.

On April 17, 2017, the trial court denied Wesson’s motion 

for class certification, concluding Wesson failed to show that 

the class claims were susceptible to common proof and that 

proceeding as a class action would be superior to other methods 

of adjudication.2 The court determined the “great variation 

in how Staples store general managers perform their jobs and 

the extent to which they perform nonexempt tasks” would require 

“highly individualized determinations” regarding each general 

manager’s exempt status.

2 Hildebrandt was one of several general managers who 

submitted declarations in support of Wesson’s class certification

motion. In his declaration, Hildebrandt detailed his job duties 

and asserted he spent more than 70 percent of his workday 

performing “the same tasks as hourly employees.”
5

3. Hildebrandt’s Lawsuit

On June 22, 2017, Hildebrandt filed this action against 

Staples, asserting the same causes of action that Hatgis and 

Wesson had pled on behalf of their respective putative classes. 

Specifically, Hildebrandt’s complaint asserts claims for (1) failure 

to pay overtime compensation; (2) failure to authorize and permit 

rest periods; (3) failure to provide meal periods; (4) failure to 

furnish accurate itemized wage statements; (5) failure to pay 

all wages upon termination; and (6) violation of the UCL. 

Like the Hatgis and Wesson complaints, Hildebrandt alleges

Staples misclassified him and other general managers as exempt 

employees to avoid paying overtime compensation and providing 

meal and rest breaks. The complaint asserts the applicable 

statutes of limitations were tolled during the pendency of the

Hatgis and Wesson class certification proceedings.

4. Staples’s Motion for Summary Judgment

Staples moved for summary judgment, arguing 

Hildebrandt’s claims were barred by the applicable statutes 

of limitations. Staples’s supporting evidence established that 

Hildebrandt’s employment ended on June 20, 2013 and that 

he did not file his lawsuit until June 22, 2017—outside the 

longest limitations period of four years.

Regarding tolling, Staples argued the Hatgis action could 

not have tolled the statutes of limitations on Hildebrandt’s claims 

because Hatgis was a Staples Copy and Print Shop general 

manger—not a Superstore general manager like Hildebrandt. 

As for the Wesson action, Staples argued the denial of class 

certification for lack of commonality in Wesson raised a 

“presumption” against tolling. Staples maintained Hildebrandt 

could not overcome the presumption because, when the Wesson 
6

action was filed, Staples had “no way of predicting” which 

Superstore general managers “would believe themselves to have 

been deprived of overtime pay and decide to sue.” Staples also 

argued the denial of class certification in Wesson could not have 

been “ ‘unforeseeable’ ” to Hildebrandt, since misclassification 

claims frequently depend on how individual employees perform 

their jobs.

In his opposition, Hildebrandt acknowledged his claims 

would be time barred without tolling. However, he argued 

application of the class action tolling doctrine was necessary 

to protect the efficiency and economy of the class action device;

otherwise putative class members would be induced to file 

individual actions to avoid the statute of limitations bar, even 

while class certification proceedings were still pending. And,

because his claims were “nearly identical” to those asserted 

on behalf of the classes in Hatgis and Wesson, Hildebrandt 

argued those putative class actions put Staples on notice 

of the substantive claims and generic identities of potential

plaintiffs like him during the applicable limitations periods.

5. The Order Granting Summary Judgment

The trial court granted Staples’s motion for summary 

judgment, concluding Hildebrandt’s claims were barred by 

the applicable statutes of limitations and class action tolling 

did not apply. Relying on Batze v. Safeway, Inc. (2017) 10 

Cal.App.5th 440 (Batze), the court determined the denial of 

class certification in Wesson due to lack of commonality gave 

rise to a “presumption” against tolling. And the court concluded 

Hildebrandt could not overcome that presumption, as a matter 

of law, because the evidence showed tolling would be “prejudicial” 
7

to Staples and the denial of class certification was not 

“unforeseeable.”

Regarding prejudice to Staples, the trial court reasoned 

the “discrepancies between the claims of the members of the

putative class were ‘too great for the [Wesson or Hatgis] action

to have put [Staples] on notice that it needed to preserve evidence 

with respect to every one of its [Superstore general managers].’ ” 

Staples, the court determined, had “no way of predicting which 

of its Superstore [general managers], including potentially 

Hildebrandt, managing dissimilar stores at over hundreds of 

locations statewide[,] would believe they too were misclassified.”

And the court found it would have been “ ‘unrealistic to expect 

that the filing of the [Wesson or Hatgis] action[ ] would have 

prompted [Staples] to maintain all employment records relating 

to every [Superstore general manager] or to gather evidence 

and witness statements pertaining to every [Superstore general 

manager].’ ”

The trial court also found “Hildebrandt fail[ed] to show 

denial of class certification was unforeseeable.” In support of 

the finding, the court noted “Hildebrandt was in communication 

with counsel in Wesson, who is now Hildebrandt’s counsel, and 

in Wesson class certification was vigorously contested which 

reflects denial of class certification was not unforeseeable.”

The trial court entered judgment for Staples. Hildebrandt 

filed a timely notice of appeal.

DISCUSSION

1. Standard of Review

On appeal from a summary adjudication, “we review 

the record de novo, considering all the evidence set forth in the 

moving and opposition papers except that to which objections 
8

have been made and sustained.” (Guz v. Bechtel National, Inc.

(2000) 24 Cal.4th 317, 334.) We make “an independent 

assessment of the correctness of the trial court’s ruling, applying 

the same legal standard as the trial court in determining whether 

there are any genuine issues of material fact or whether the 

moving party is entitled to judgment as a matter of law.” 

(Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 

218, 222.)

A defendant is entitled to summary adjudication upon 

a showing that a plaintiff’s cause of action has no merit. (Code 

Civ. Proc., § 437c, subds. (a) & (f)(1).) The defendant meets 

this burden with respect to each cause of action by establishing 

undisputed facts that negate one or more elements of the claim or 

state a complete defense to the cause of action. (Id., subd. (p)(2); 

Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.) 

Once the defendant has made such a showing, the burden shifts 

to the plaintiff to show that a triable issue of material fact exists 

as to the cause of action or defense. (Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 853.)

2. The American Pipe Tolling Rule as Adopted in Jolly

This appeal presents one issue: Was Hildebrandt entitled, 

due to the pendency of the Wesson and Hatgis class certification 

proceedings, to claim the benefit of the class action tolling rule 

established by the United States Supreme Court in American 

Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 (American 

Pipe), as adopted by our Supreme Court in Jolly, supra, 44 Cal.3d 

1103? We conclude he was.

In Jolly, our Supreme Court summarized the holding of 

American Pipe as follows: “[U]nder limited circumstances, if 

class certification is denied, the statute of limitations is tolled 
9

from the time of commencement of the suit to the time of denial 

of certification for all purported members of the class who either 

make timely motions to intervene in the surviving individual 

action [citation], or who timely file their individual actions.” 

(Jolly, supra, 44 Cal.3d at p. 1119.)

The Jolly court identified “two major policy considerations” 

underlying the American Pipe tolling rule: (1) protection of 

the class action device; and (2) effectuation of the purpose of 

the statute of limitations. (Jolly, supra, 44 Cal.3d at p. 1121.) 

According to our high court, “[t]he question to be asked” in 

determining whether tolling should apply to an absent class 

member’s individual claims “is whether [the former] class action 

fits the rationale of American Pipe, supra, 414 U.S. 538.” (Ibid.)

Regarding the first consideration, the Jolly court explained: 

“In cases where class certification is denied for what the 

[American Pipe court] characterized as ‘subtle factors,’

unforeseeable by class members, a rule that failed to protect 

putative class members from the statute of limitations after 

denial of certification would induce potential class members 

to ‘file protective motions to intervene or to join in the event that 

a class was later found unsuitable,’ depriving class actions ‘of the 

efficiency and economy of litigation which is a principal purpose 

of the procedure.’ ” (Jolly, supra, 44 Cal.3d at p. 1121, quoting 

American Pipe, supra, 414 U.S. at p. 553; see also Crown, Cork 

& Seal Co., Inc. v. Parker (1983) 462 U.S. 345, 350–351.) Thus, 

courts must determine whether tolling will “serve[ ] to further 

economy and efficiency of litigation, so as to justify affording 

plaintiff shelter under the protective umbrella of American Pipe.” 

(Jolly, at p. 1122.) That determination will often depend on 

whether the claims asserted on behalf of the putative class were 
10

sufficiently similar to the absent class members’ individual 

claims, so that the absent class members can be found 

“reasonably [to] have relied on the [class action] complaint 

as a basis for postponing their own” actions. (Id. at p. 1125.)

As for the second consideration, the Jolly court reaffirmed 

that statutes of limitations promote the “ ‘policies of ensuring 

essential fairness to defendants and of barring a plaintiff who has 

“slept on his rights” ’ ” from bringing a stale claim. (Jolly, supra,

44 Cal.3d at p. 1121, quoting American Pipe, supra, 414 U.S. at 

p. 554.) Our high court explained these policies “ ‘are satisfied 

when . . . a named plaintiff who is found to be representative 

of a class commences a suit and thereby notifies the defendants 

not only of the substantive claims being brought against them, 

but also of the number and generic identities of the potential 

plaintiffs who may participate in the judgment.’ ” (Jolly, at 

p. 1121, quoting American Pipe, at pp. 554–555.) Adequate notice 

to the defendant is key to ensuring fair application of the tolling 

rule. In that regard, the Jolly court emphasized the importance 

of avoiding a particular abuse that would arise if plaintiffs were 

“ ‘free to raise different or peripheral claims following denial 

of class status,’ ” and admonished trial courts to “ ‘take care to 

ensure that the [subsequent] suit raises claims that “concern 

the same evidence, memories, and witnesses as the subject 

matter of the original class suit,” so that “the defendant will 

not be prejudiced.” ’ ” (Jolly, at p. 1124; see also id. at p. 1125 

[instructing lower courts to “exercise discretion in applying 

the American Pipe rule in order to ‘prevent the type of abuse 

mentioned above and [to] preserve a defendant whole against 

prejudice arising from claims for which he has received no prior 

notice.’ ”].) 
11

In Jolly, application of the tolling rule satisfied neither 

underlying policy consideration of American Pipe. (Jolly, supra,

44 Cal.3d at p. 1122.) The original class action had been filed 

by Judith Sindell, who sued “on her own behalf and, ‘with respect 

to certain relief,’ on behalf of a class of women allegedly similarly 

situated.” (Id. at p. 1120; see Sindell v. Abbott Laboratories

(1980) 26 Cal.3d 588 (Sindell).) For herself, individually, Sindell 

claimed damages for personal injuries suffered due to her 

mother’s ingestion of DES during pregnancy.3 (Jolly, at p. 1120.)

For the class, Sindell sought “only declaratory relief and an order 

directing defendants to publicize the dangers of DES.” (Ibid.) 

The trial court denied certification, citing “lack of commonality 

among class members on issues of proximate cause, extent 

of injury, and appropriate medical examination or treatment.” 

(Ibid.) While the certification proceedings were pending, 

Christine Jolly filed her individual lawsuit for personal injuries 

caused by her mother’s prenatal ingestion of DES. (Id. at 

pp. 1107–1108.)

Relying on American Pipe, Jolly argued the filing of 

the class action in Sindell tolled the statute of limitations for

individual putative class members until certification was denied. 

(Jolly, supra, 44 Cal.3d at p. 1118.) Our Supreme Court rejected 

the argument, concluding “the Sindell class action complaint 

neither sufficiently put defendants on notice of the substance 

and nature of plaintiff’s claims, nor served to further economy 

3 DES is the synthetic drug estrogen diethylstilbestrol. It 

had been prescribed for the prevention of miscarriages before 

its association with certain congenital diseases was discovered. 

(See Jolly, supra, 44 Cal.3d at p. 1107.)
12

and efficiency of litigation, so as to justify affording plaintiff 

shelter under the protective umbrella of American Pipe.” (Id.,

at p. 1122.) Specifically, our high court held the “same 

reasons that render certification of mass-tort claims generally 

inappropriate render inappropriate the application and extension 

of American Pipe . . . to the present case.” (Id., at p. 1123.)

Because Sindell had asserted different claims on behalf 

of the class and because the determination of whether someone 

suffered injury from prenatal exposure to DES implicated myriad 

factual issues, the Jolly court reasoned Sindell’s class complaint 

did not put the defendants on notice of Jolly’s substantive claims 

or of the generic identities of potential individual plaintiffs like 

Jolly. The court explained: “Because of the nature of the Sindell

complaint—as indicated, Judith Sindell did not seek to certify 

the class as to personal injury claims, the gravamen of plaintiff’s 

complaint—and the differences in issues of fact and law—

plaintiff’s action for damages puts into issue the prenatal 

treatment of her mother, the specific form of DES prescribed 

(e.g., tablet, capsule), the dosage taken, her mother’s obstetrical 

history and many other issues necessarily involved in proving 

causation, damages and defenses—the Sindell class suit 

[citation] could not have apprised defendants of plaintiff’s 

substantive claims. Therefore, plaintiff cannot now claim that 

Sindell’s complaint put defendants on notice of allegations 

related to personal injury within the statutory period of 

limitation so that they might prepare their defense.” (Jolly, 

supra, 44 Cal.3d at pp. 1123–1124.)

Likewise, “because the Sindell complaint did not seek 

personal injury damages on behalf of the class,” the Jolly court 

reasoned “even those absent class members who were aware 
13

of that action could not reasonably have relied on the complaint 

as a basis for postponing their own personal injury actions.” 

(Jolly, supra, 44 Cal.3d at p. 1125.) Thus, refusing to extend the 

tolling rule to Jolly’s personal injury claim would “not result in 

duplicative litigation of the sort feared by the court in American 

Pipe, nor [would] it deprive [the class action device] of its purpose 

to further the efficiency and economy of litigation.” (Ibid.)

Having determined the discrepancy in the claims asserted 

on behalf of the Sindell putative class and in Jolly’s individual 

complaint precluded application of the American Pipe tolling rule, 

the Jolly court remarked that it “need not address the broader

question whether in any personal injury mass-tort case the 

filing of a class action complaint can serve to toll the statute of 

limitations for putative class members when the class ultimately 

is denied certification for lack of commonality.” (Jolly, supra,

44 Cal.3d at p. 1125.) Nevertheless, our Supreme Court offered

an admonition for putative class members in such cases: 

“We observe, however, that because personal-injury mass-tort 

class-action claims can rarely meet the community of interest 

requirement in that each member’s right to recover depends 

on facts peculiar to each particular case, such claims may 

be presumptively incapable of apprising defendants of ‘the 

substantive claims being brought against them’ [citation], 

a prerequisite, in our view, to the application of American Pipe

[citations]. This being so, putative class members would be 

ill advised to rely on the mere filing of a class action complaint 

to toll their individual statute of limitations. The presumption, 

rather, should be to the contrary—i.e., that lack of commonality 

will defeat certification and preclude application of the American 

Pipe tolling doctrine.” (Ibid.)
14

3. The Limitations Periods Were Tolled During the 

Wesson and Hatgis Class Certification Proceedings

In declining to apply the tolling rule to Hildebrandt’s 

claims, our trial court relied upon Batze, supra, 10 Cal.App.5th 

440. Like our case, Batze considered whether the statute of 

limitations should have been tolled on claims for unpaid overtime 

wages brought by three assistant managers of the defendant 

supermarket after certification of the same unpaid wage claim 

on behalf of a putative class of assistant managers was denied 

for lack of commonality. (Id. at pp. 445–446, 482–484.) Our 

colleagues in Division Four “discern[ed] no error in the trial 

court’s determination that the statute of limitations was 

not tolled,” reasoning the denial of certification for lack of 

commonality gave rise to a presumption against tolling, and 

the trial court had correctly found application of the tolling 

rule would not satisfy the “ ‘two major policy considerations’ ” 

underlying American Pipe.

4 (Batze, at pp. 482–484.) As we 

will discuss, there are inconsistencies between the Batze

court’s reasoning and our Supreme Court’s articulation of 

these underlying policy considerations in Jolly. Due to 

those inconsistencies, we cannot follow Batze in this case.

4 The parties commit considerable portions of their briefing 

to discussing this supposed “presumption” from Jolly. The issue 

is irrelevant to our disposition of this appeal. The pertinent 

passage—one paragraph appearing at the end of the Jolly opinion

—is dicta. (See Jolly, supra, 44 Cal.3d at p. 1125 [observing, 

“In light of our disposition, we need not address the broader 

question whether in any personal injury mass-tort case the 

filing of a class action complaint can serve to toll the statute of 

limitations for putative class members when the class ultimately 
15

The trial court in Batze “found the discrepancies between 

the claims of the members of the putative class were ‘too great 

for the [former class] action to have put [the defendant] on notice 

that it needed to preserve evidence with respect to every one 

of its managers and assistant managers,’ that [the defendant] 

had no way of predicting which of the thousands of managerial 

employees holding multiple positions in hundreds of locations 

would believe themselves to have been deprived of overtime and 

decide to bring a suit, and that it would have been unrealistic 

to expect that the filing of the [former class] action would have 

prompted [the defendant] to maintain all employment records 

relating to every managerial employee or to gather evidence and 

witness statements pertaining to every managerial employee.” 

is denied certification for lack of commonality” (italics added)].) 

The passage is a warning to putative class members in “personal 

injury mass-tort case[s]” about what their “presumption” should 

be when considering whether to “rely” on a class action “to toll 

their individual statute of limitations,” given that “personalinjury mass-tort class-action claims can rarely meet the 

community of interest requirement.” (Id. at p. 1125 & fn. 19 

[expressing view that “class actions can rarely be appropriate 

for resolution of mass tort claims”]; see also Becker v. McMillin 

Construction Co. (1991) 226 Cal.App.3d 1493, 1500 (Becker)

[recognizing the “presumption” applies only to “personal injury 

mass tort cases”]; Perkin v. San Diego Gas & Electric Co. (2014)

225 Cal.App.4th 492, 504 (Perkin) [same]; cf. Batze, supra, 10 

Cal.App.5th at p. 482 [eliding Jolly court’s reference to mass tort 

claims].) We do not read this passage as a categorical directive 

about what a court must presume in assessing the major policy 

considerations underlying American Pipe in every case in which 

certification is denied for lack of commonality. 
16

(Batze, supra, 10 Cal.App.5th at p. 483.) The Batze court 

concluded these were appropriate reasons to refuse tolling, noting

the “evidence presented bore out the [trial] court’s conclusions.” 

(Id. at p. 484.) Additionally, the court found the “fact that nearly 

200 plaintiffs had already brought individual claims before 

the class certification was denied [gave] further support to 

the trial court’s ruling, as it demonstrate[d] that denial of 

class certification was not unforeseen.” (Ibid.)

We agree with Hildebrandt that the reasons the Batze 

court gave for its decision—reasons adopted by our trial court 

in refusing to toll the limitations periods on Hildebrandt’s 

claims—have no substantive foundation in Jolly or American 

Pipe. To begin, as Hildebrandt points out, nothing in Jolly 

or American Pipe makes tolling dependent upon whether the 

defendant had “a way of predicting” which absent class member 

“would believe themselves” injured and “decide to bring a suit.” 

(Batze, supra, 10 Cal.App.5th at pp. 483–484.) Indeed, that sort 

of factual inquiry into what the defendant could have predicted 

about what an absent class member might have believed is 

plainly improper under Jolly and American Pipe, which require 

the trial court to focus on the class action pleading to determine 

whether the defendant had adequate notice sufficient to 

effectuate the purpose of the statute of limitations. (Jolly, supra,

44 Cal.3d at p. 1121; American Pipe, supra, 414 U.S. at pp. 554–

555; see also Perkin, supra, 225 Cal.App.4th at pp. 498–500 

[trial court made improper “finding of fact” regarding defendant’s 

“knowledge of the boundaries” of a fire perimeter in determining 

if tolling applied].)

In contrast to the factual inquiry embraced in Batze, Jolly 

and American Pipe require only that the original class action 
17

complaint “ ‘notifies the defendants . . . of the substantive claims

being brought against them, [and] of the number and generic 

identities of the potential plaintiffs who may participate in 

the judgment.’ ” (Jolly, supra, 44 Cal.3d at p. 1121, quoting 

American Pipe, supra, 414 U.S. at pp. 554–555, italics added.) 

As long as the pleading provides this notice, there is no further

requirement that the defendant also be able to predict which 

of the potential plaintiffs will decide to bring suit. (See Becker, 

supra, 226 Cal.App.3d at p. 1501 [where “identity and number 

of potential claimants [was] ascertainable to a significant degree” 

from original class action complaint, this “was adequate to give 

the required notice,” even though some claimants inevitably 

would not bring suit]; cf. Perkin, supra, 225 Cal.App.4th at p. 507 

[where “potential plaintiffs were not limited to a set number from 

a specific, clearly defined area,” and could have included anyone 

“in California claiming that their properties were damaged 

in some way” by fire, class action complaint did not provide 

adequate notice].)

Jolly provides an instructive contrast to our case and to 

Batze. In Jolly, the defendant could not possibly have discerned

from the Sindell complaint the number and generic identities 

of potential plaintiffs who might participate in the class action 

judgment. The complaint defined the putative class as female 

residents of California “ ‘who have been exposed to DES before 

birth and who . . . have or may have contracted or in the future 

may contract adenocarcinoma or vaginal or cervical adenosis 

or precancerous tumors of the breast or cancer of the bladder.’ ” 

(Jolly, supra, 44 Cal.3d at p. 1120.) As Jolly recognizes, even 

if the defendant could identify all pregnant women who were 

administered DES in California during the relevant period, 
18

an individualized assessment of “the specific form of DES 

prescribed (e.g., tablet, capsule), the dosage taken, [each]

mother’s obstetrical history and many other issues necessarily 

involved in proving causation, damages and defenses” would 

be required to ascertain which of their daughters actually had 

a significant exposure to DES before birth and which of those 

women had contracted or might contract the ailments listed in 

Sindell’s class definition. (Jolly, at p. 1123.) No such inquiry 

is required here. 

Unlike in Jolly, there is no reasonable dispute that Staples 

was readily able to determine the number and generic identity 

of all potential plaintiffs who might have participated in the 

Wesson or Hatgis class action judgment, and Staples could do 

this without an individualized assessment of intervening factors 

related to causation, damages, or even its affirmative defense. 

The Wesson class was defined as “[a]ll current and former 

employees of [Staples] employed as General Managers at Staples 

Superstore retail locations in California [on or after] May 10, 

2010.”

5 Although the trial court in Wesson found Staples’s 

5 The Hatgis class was defined as “All persons employed 

by Defendants as General Managers at Staples retail locations

in the State of California between March 11, 2014 and the date 

class certification is granted.” (Italics added.) Staples argues 

Hatgis could not have given it notice because “Hatgis did not

even involve Superstore [general managers], the position 

[Hildebrandt] held.” The record is to the contrary. Although 

the trial court in Hatgis limited the class to only Staples Copy 

and Print Shop general managers more than a year after Hatgis 

filed her complaint, during the relevant tolling period, the class 
19

exemption defense required individualized inquiries that 

precluded class certification, Staples nevertheless admits it 

could identify each and every member of the proposed class. 

Under American Pipe and Jolly, nothing more was required. 

(See Jolly, supra, 44 Cal.3d at p. 1121; American Pipe, supra, 

414 U.S. at pp. 554–555.)

Notwithstanding its admission, Staples argues it “cannot 

be the law” that it was required to preserve evidence relevant 

to the claims of every Superstore general manager in California 

“simply because a class action was filed.” The Batze court and 

our trial court likewise concluded “it would have been unrealistic 

to expect that the filing of the [former class] action would have 

prompted [the defendant] to maintain all employment records 

relating to every managerial employee or to gather evidence and 

witness statements pertaining to every managerial employee.” 

(Batze, supra, 10 Cal.App.5th at pp. 483–484.) But neither 

American Pipe nor Jolly identified the burden of preserving 

evidence as a basis to refuse tolling. On the contrary, these 

controlling authorities were concerned with only the prejudice

that would arise if defendants did not receive adequate notice of 

definition did include Superstore general managers like 

Hildebrandt. 

Staples also argues tolling premised on Hatgis is barred 

under Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 

276. But Fierro only held that “American Pipe tolling does not 

apply to any later class claims.” (Fierro, at p. 291.) Hildebrandt 

argues his individual claims—specifically, his individual claim 

for failure to pay wages upon termination—were tolled during 

the pendency of the Hatgis class certification proceedings. 

Fierro is inapposite.
20

the substantive claims and generic identity of potential plaintiffs 

“within the statutory period of limitation so that they might 

prepare their defense.” (Jolly, supra, 44 Cal.3d at pp. 1123–1124; 

American Pipe, supra, 414 U.S. at p. 562.) 

Part of preparing a defense is preserving and gathering 

evidence relevant to a claim. As discussed, the Wesson and 

Hatgis complaints put Staples on notice that it faced Labor 

Code and UCL violation claims stemming from its blanket 

classification of all general managers as exempt employees

and alleged failure to pay required wages. And Staples admits 

the class definitions allowed it to identify all the potential 

plaintiffs who might assert those claims within the statutory 

period of limitations. Staples therefore had sufficient notice to 

allow it to gather and preserve evidence in preparing its defense. 

(See Becker, supra, 226 Cal.App.3d at pp. 1501–1502 [where 

former class action made the defendant “ ‘aware of the need to 

preserve evidence and witnesses respecting the claims of all 

the members of the class,’ ” lack of commonality was “not fatal 

to the existence of an adequate degree of notice to the defendant 

for purposes of applying the tolling rule” (italics added)].)

While the burden placed on a defendant to preserve 

evidence is not a relevant consideration, the burden placed on

the courts is. The relevant policy consideration is “protection of 

the class action device”—specifically, “ ‘the efficiency and economy 

of litigation which is a principal purpose of the procedure.’ ” 

(Jolly, supra, 44 Cal.3d at pp. 1121, 1125, italics added.)

When the trial court addressed this policy consideration, 

it concluded Hildebrandt could not have reasonably relied upon 

certification of the Wesson class because Hildebrandt was “in 

communication with counsel in Wesson” and class certification 
21

was “vigorously contested.” These facts, the trial court reasoned,

“reflect[ed] denial of class certification was not unforeseeable.” 

The Batze court similarly found the plaintiffs could not have 

reasonably relied on the former class action in waiting to file

their claims because “nearly 200 plaintiffs had already brought 

individual claims before the class certification was denied.” 

(Batze, supra, 10 Cal.App.5th at p. 484.) Neither of these 

reasons is consistent with the relevant policy consideration.

As Hildebrandt points out, nothing in American Pipe or 

Jolly suggests we should consider whether class certification 

was “vigorously contested” or whether absent class members 

“had already brought” protective individual actions in assessing 

whether tolling is necessary to protect the class action device. 

Instead, American Pipe and Jolly hold that tolling during class 

proceedings is necessary because, without a tolling rule, class

members would be “induce[d]” to “ ‘file protective motions to 

intervene’ ” thereby “depriving class actions ‘of the efficiency 

and economy of litigation which is a principal purpose of the 

procedure.’ ” (Jolly, supra, 44 Cal.3d at pp. 1121, 1125, italics 

added.)

Again, Jolly provides an instructive contrast. In evaluating 

whether application of the tolling rule was necessary to protect 

the class action device, our Supreme Court did not focus on the 

individualized evidence that would be necessary to prove Jolly’s

claims. Nor did our high court consider whether Jolly should 

have known certification of the Sindell class would be denied for 

lack of commonality. Rather, the court’s analysis turned on the 

difference between the claims asserted in the class action and in 

Jolly’s individual action, and whether it was reasonable for Jolly 

to postpone bringing her action in light of that difference. The 
22

Jolly court explained: “[B]ecause the Sindell complaint did not 

seek personal injury damages on behalf of the class, even those 

absent class members who were aware of that action could not 

reasonably have relied on the complaint as a basis for postponing 

their own personal injury actions.” (Jolly, supra, 44 Cal.3d at 

p. 1125, italics added.) And, because the claims were different, 

the Jolly court held declining to apply the class action tolling 

rule would “not result in duplicative litigation of the sort feared 

by the court in American Pipe, nor [would] it deprive [the class 

action device] of its purpose to further the efficiency and economy 

of litigation.” (Ibid., citing American Pipe, supra, 414 U.S. at 

p. 553.) 

Staples does not dispute that Hildebrandt asserted the 

same Labor Code and UCL violations that the Wesson and Hatgis

complaints asserted on behalf of their respective putative classes. 

A comparison of the complaints also confirms Hildebrandt and 

Wesson based their claims on the same underlying allegation 

that Staples misclassified its general managers as exempt 

employees despite requiring them to spend over 50 percent of 

their working hours performing duties delegated to non-exempt 

employees. Likewise, Hildebrandt asserted the same claim for 

failure to pay wages upon termination that Hatgis asserted on 

behalf of the putative class in her case. And, unlike mass tort 

personal injury claims, these misclassification and unpaid wage 

claims are not presumptively unsuitable for class treatment. (Cf. 

Jolly, supra, 44 Cal.3d at p. 1126, fn. 19 [“class actions can rarely 

be appropriate for resolution of mass tort claims”]; Duran v. U.S. 

Bank National Assn. (2014) 59 Cal.4th 1, 37–38 [“A class action 

trial may determine that an employer is liable to an entire class 

for misclassification if it is shown that the employer had a 
23

consistently applied policy or uniform job requirements.”]; 

Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 

362, 380 [misclassification claim seeking unpaid overtime wages 

on behalf of managerial employees of restaurant chain was 

amenable to common proof where “parties ha[d] identified a finite 

task list, suggesting that jobs . . . were ‘highly standardized’ ”]; 

Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301 

[common legal and factual issues predominated misclassification 

claims for unpaid overtime, meal and rest break violations, and 

wage statement violations].)

Thus, under Jolly, Hildebrandt could “reasonably have 

relied on the [Wesson and Hatgis] complaint[s] as a basis for 

postponing” the filing of his own claims. (Jolly, supra, 44 Cal.3d 

at p. 1125.) Were we to hold the limitations periods on these 

claims were not tolled during a class certification proceeding in 

which the same claims were asserted on behalf of Hildebrandt as 

a member of the putative class, there is little doubt our holding 

would induce absent class members in future misclassification 

cases to file protective individual actions for fear their claims 

might be time barred, thus depriving the class action of the 

efficiency and economy of litigation that is its principal purpose. 

(Jolly, at p. 1121; American Pipe, supra, 414 U.S. at p. 553.) 

The Wesson and Hatgis complaints gave Staples adequate 

notice of Hildebrandt’s potential claims. There is no prejudice 

to Staples. Tolling is therefore appropriate, and the statute 

of limitations must give way to the stronger consideration: 

protection of the class action device. (Cf. Jolly, supra, 44 Cal.3d 

at pp. 1123–1124 [prejudice to defendant is “alone sufficient” to 

deny tolling relief]; see Becker, supra, 226 Cal.App.3d at p. 1502

[application of tolling rule was “fair” where the defendant had
24

adequate notice of claims and generic identity of claimants, 

thus “equitable principles” underlying tolling rule prevailed 

over statute of limitations].) 

With the exception of the claim for failure to furnish 

accurate itemized wage statements, the trial court erred 

in ruling Hildebrandt’s claims were time barred.

DISPOSITION

The summary adjudication of Hildebrandt’s claim for 

failure to furnish accurate itemized wage statements is affirmed. 

In all other respects the summary judgment is reversed. 

Hildebrandt is awarded costs.

CERTIFIED FOR PUBLICATION

EGERTON, J.

We concur:

LAVIN, Acting P. J.

DHANIDINA, J.