Filed 9/30/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MIGUEL TELLEZ

Plaintiff and Appellant ,

v. RICH VOSS TRUCKING, INC

. , et al

. , Defendant s and Respondents

. H0 40375 ( Santa Cla ra County Super. Ct. 1

- 12

- CV

- 227103 )

Plaintiff Miguel Tellez appeals the trial court’s denial of his motion for class certification in what is essentially a wage

- and

- hour dispute. For reasons that follow, we must reverse the order deny ing class ce rtification and remand to the trial court for an explanation of the court’s r easoning in denying the motion. Facts and Proceedings Below It is undisputed that p laintiff is a truck driver who w orked for Rich Voss Trucking. On June 22, 2012, p laintiff file d a putative class action complaint against Rich
V oss Trucking, Inc. (RVT), Stevens Creek Quarry , Inc. (SCQ), and Richard A. Voss (collectively d efendants) alleging wage and hour violations. Specific ally, p laintiff
contended that d efendants were his joint employers and the employers of all similarly
situated non

- exempt c urrent and former employees of d efendants. Plaintiff’s class action complaint alleged 10 causes of action: (1) f ailure to provide required meal periods ( Lab. Code, §§ 226.7, 510, 512, 119 4, 1197 1 : IWC 2 wage o rder No. 16

- 2001 ) , (2) f ailure

1 All further statutory references are the the Labor Code un less otherwise indicated.

2 IWC stands for Industrial Welfare Commission.2

to provide required rest periods (§§ 226.7, 512; IWC wage order No. 16

- 2001) , (3) failure to pay overtime wages (§§ 226 , 510, 1194, 1197 ; IWC Order No. 16

- 2001), (4) f ailure to pay minimum wage ( §§ 226, 5 10, 1194, 1197; IWC Order No. 16

- 2001) , (5) failure to pay all wages due to discharged or quitting employees (§§ 201, 202, 203) , (6) failure to maintain required records (§§ 1174, 1174.5) , (7) failure to indemnify employees for necessary expenditure s incur red in the discharge of duties (§ 2802) , (8) failure to provide
accurate itemized wage statements (§§ 226, 226.3) , and (9) unfair and unlawful business practices (Bus. & Prof. Code, §§ 17200

- 17208). Plaintiff alleged a tenth cause of action
under the Priv ate Attorneys General Act of 2004 for a representative action for civil penalties (§§ 2698, 2699.5). In the complaint, p laintiff alleged that he was bringing the action on “behalf of himself and others similarly situated current and former employees
in th e State of California (collectively PLAINTIFFS ) of RICH VOSS TRUCKING, INC. (RVS), STEVENS CREEK QUARRY ( STEVENS CREEK ) and DOES 1

- 100 (collectively DEFENDANTS )

. . . .” On the same day that p laintiff filed his original complaint in the class action
lawsu it, he filed a separate complaint ( the individual complaint) against d efendants and Steve A. Martini. This complaint alleged three causes of action : ( 1) disability discrimination, disability harassment, failure to take all reasonable steps to prevent
dis crimination, failure to accommodate, failure to engage in the interactive process , and retaliation (Gov. Code, § 12940) ; (2) racial discrimination, racial harassment, failure to take all reasonable steps to prevent discrimination and harassment ( Ibid

. ) ; an d (3) national origin/ancestry discrimination, national origin/ancestry harassment, and failure to take all reasonable steps to prevent discrimination and harassment ( Ibid

. ). Although the two cases were consolidated for trial and plaintiff filed a first a mended3

complaint 3 in both cases , it is only with the denial of class certification and the denial of
his motion to amend t he complaint to add a new class representative in the class action
lawsu it that p laintiff takes issue. On April 3, 2013, d efendants b rought a motion to strike the class allegations
because p laintiff had failed to file a motion to certify the class. 4 Defendants asserted that
p laintiff was not a suitable class representative because his claims were not typical , as
p laintiff worked for RV T only as a truck driver; and truck drivers are regulated by the Federal Department of Transportation Regulations and are exempt from California’s overtime rules. Further, d efendants contended that p laintiff was not an adequate representative because of h is impaired credibility since he had lied on his employment application when he told RVT that he had never been convicted of a felony. 5 Plaintiff opposed the motion as “an improper attempt to ‘slip through the backdoor’ with a preemptive opposition to a m otion for class certification that ha [d] not yet been filed” ; plaintiff blamed d efendants for his delay in not filing a motion for class
certification by not providing documents relevant to the class allegations. In reply,
d efendants asserted that p lainti ff’s attempt to blame them for the delay in filing the motion for class certification was misplaced and that their motion to strike the class allegations should be granted so the matter could proceed to trial. Plaintiff filed an

3 In plaintiff’s first amended complaint in the class action case, plaintiff alleged that he was bringing the action “on behalf of himself and the following similarly situated cla ss of individuals (CLASS MEMBERS): all current and former non

- exempt employees of DEFENDANTS in the State of California at any time within the period beginning four years prior to the filing of [the] action and ending at the time [the] action settles or pr oceeds to final judgment (the CLASS PERIOD).”

4 We note that generally, in cases involving wage and hour claims, the issue of class suitability should not be determined at the pleading stage of the case. ( Prince v

. CLS Transportation , Inc

. (2004) 118 Cal . App. 4th 1320, 1325.)

5 In his deposition testimony , p laintiff conceded that he was convicted of committing a lewd or lascivious act upon a child by force (Pen. Code, § 288, subd. (b)).4

ex parte application for a n order to extend the deadline to file his motion for class
certification. The court granted the reques t and extended the time for p laintiff to file the motion until August 9, 2013. 6 On August 12, 2013, p laintiff filed a motion for leave to amend the com plaint to add Christopher Hart as the new class representative and a memorandum of points and authorities in support of his motion for class certification

. Attached to the memorandum of points and authorities were several exhibits including a declaration by Keila A. Carrasco, 7 who had analyzed time records of the employees of SQC and RVT ; p laintiff attached over 12,000 pages of time records as exhibits to the motion. Ms. Carrasco averred that in reviewing the records she found violations that included mis sed meal breaks, late meal breaks, missed second meal breaks, unpaid overtime hours after working an 8

- hour shift, unpaid overtime hours after working a 10

- hour shift, and unpaid double time hours after working a 12

- hour shift. Defendants responded to p lai ntiff’s motion by claiming that class certification was not appropriate because there were not common questions of law or fact that would predomin ate. Defendants asserted that p laintiff’s claim for overtime was misplaced
because RVT truck drivers are exem pt from overtime requirements, 8 and because RVT

6 Plaintiff filed a second application for an order to extend the deadline to file the class certification, which was denied

.

7 It appears that Ms. Carrasco was employed in the law offices of plaintiff’s counsel. Although she graduated with a J.D. from the University of California, Hastings in 2006, she was employed as a law clerk. Her analysis of the time records constituted a basic clerical and arithmetical summary of the information contained in the documents produced by the d efendants

.

8 We assume that d efendants were arguing that they came within the motor carrier exemption in the California Labor Code. “ IWC Wage Order No. 9, regulating wages, hours and working conditions in the transportation industry, excludes from its overtime pay requirements ‘ employees whose hours of service are regulated by

. . . the United States Department of Transportation Code of Federal Regulations, Title 49, Sections 395.1 to 395.13. ’ [Citations.]” ( Watkins v

. Ameripride Services (9th Cir. 2004) 375 F.3d (continued)5

and SCQ have policies and procedures that fully comply with the California Labor Code and California Wage Orders, individualized inquiries would be necessary to prove whether or not the policies were followed . Defend ants again raised the issue of
p laintiff ’s not being an adequate representative because of his credibility issues. Defendants argued that they were prep ared for trial and by allowing p laintiff to amend the complaint to add a new class representat ive they would have to reope n discovery, which would allow p laintiff another delay to bring a second motion for class certification and significantly del ay the resolution of the case. At some point the court set the hearing on the mo tion for class certifi cation on September 10, 2013

. At the hearing on September 10, 2013, after counsel announced their presence for the record, the court noted that it had “received no phone call regarding the motion itself.” The court asked if counsel wanted to go ahead and set the trial date. Plaintiff’s counsel told the court that he “would like to be heard on both the motion to amend and
the motion for class cert ification.” The court cut off p laintiff’s counsel. The court stated
th at p laintiff’s counsel had not contact ed the court and asked whether he had contacted opposing counsel. Plaintiff’s counsel apologized to the court for not contacting opposing counsel, but explained that he had been out of the office in a mediation and had a trial starting that day

. The cour t told counsel, “We can’t hear the argument. You’ll have to talk with [opposing counsel]. But right now we’re going to discuss trial setting. ” Plaintiff’s counsel stated that he had “no problem with s etting it now.” However, when p laintiff’s

821, 825 ( Watkins ).) “ Sections 395.1 to 395.13 set the federal maximum hour rest rictions for employees of motor carriers. However, these regulations are only applicable to motor carriers and drivers engaged in interstate commerce.” ( Ibid .) As far as we can tell from the record, defendants made no showing that they were involved in interstate commerce rather than intrastate commerce.6

counsel po inted out to the court that the tentative decision consisted of one sentence saying that the motion was denied and asked if the court was going to issue a more detailed ruling, 9 The trial judge responded, “I don’t intend to.” When counsel asked for
“some kind of findings on the record” for purposes of appeal so that on appeal this court “would have some basis to know whether there was [ sic ] issues with numerosity, capability, commonality, adequ acy

— ” the court cut off plaintiff’s counsel and stated that
it was “not discussing the motion right now. There was no phone call. ” 10

9 Defendants do not dispute the fact that the tentative decision stated only that the motion was denied.

10 We assume that the court’s reference to “no phone call” was a citation to a Santa Clara Coun ty local rule of court. The Superior Court of Santa Clara County, Local Rules, rule 8E provides, “The Court follows CRC 3.1308(a)(1) for those departments that have elected to issue tentative rulings in civil law and motion and discovery matters. Counse l and litigants are responsible for determining whether the department hearing their motion has made this election. Those departments issuing tentative rulings will do so generally by 2:00 p.m., and no later than 3:00 p.m., on the court day preceding the scheduled hearing. If the Court has not directed oral argument, a party contesting a tentative ruling must give notice of its intention to appear to the other side and the Court no later than 4 : 00 p.m. on the court day preceding the scheduled hearing . Ap pearances may be [made] by telephone (through CourtCall) or in person. The tentative ruling will automatically become the order of the Court on the scheduled hearing date if the Court has not directed oral argument and if the contesting party fails to tim ely notice an objection to the other side and the Court . Tentative rulings will be posted on the Court’s website, www.scscourt.org , where further information may be found. If a party does not have access to the internet, the tentative ruling may be acces sed by calling Court Services at (408) 882

- 2515. Questions about these procedures may be addressed to the specific department where the matter is to be heard.” (Italics added) In turn, California Rules of Court, rule 3.1308(a) provides, “A trial court th at offers a tentative ruling procedure in civil law and motion matters must follow one of the following procedures: [¶] (1) Notice of intent to appear required [¶] The court must make its tentative ruling available by telephone and also, at the option of the court, by any other method designated by the court, by no later than 3:00 p.m. the court day before the scheduled hearing. If the court desires oral argument, the tentative ruling must so direct. The tentative ruling may also note any issues on wh ich the court wishes the parties to provide further argument. If the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on (continued)7

The court’s order on p laintiff’s motion for class certification states, “Plaintiff’s
M otion for Class Certification is DENIED.” S imilarly, the court’s order on p laintiff’s
motion for leave to amend the complaint states, “Plaintiff’s Motion for Leave to Amend is DENIED.”
On a ppeal, p laintiff contends that the denial of certification cannot be affirmed as

a matt er of law, because it states no “ ‘valid pertinent reason’ ” sufficient to u phold the
order. 11

Discussion Denial of P laintiff

’ s Motion for Class Certification
At the outset we note that the denial of certification to an entire class is an appealable order. ( Linder v

. Thrifty Oil Co . (2000) 23 Cal.4th 429, 435 ( Linder ) .) This
ord er has what has come to be known as the “death knell” effect of making further proceedings in the action impractical because of denial of class action status. Our Supreme Court has held that where an order has the “death knell” effect of making further pr oceedings in the action impractical, the order is appealable. (See Daar v

. Yellow Cab Co

. (1967) 67 Cal.2d 695, 699 [the legal effect of the order is tantamount to a dismissal of the action as to all members of the class other than plaintiff. It has virt ually demolished the action as a class action. If the propriety of such disposition could not
now be rev iewed, it can never be reviewed ].)

the court day before the hearing of the party’ s intention to appear. A party must notify all other parties by telephone or in person. The court must accept notice by telephone and, at its discretion, may also designate alternative methods by which a party ma y notify the court of the party’ s intention to appear. The tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given. ”

11 In addition, plaintiff contends that the superior court abused its discretion by denying his motion for certification because no substantial evidence supports the denial. As we shall explain, it is impossible to address this question as we have no idea upon what basis the superior court denied the certification moti on.8

As our Supreme Court explained in Linder , supra , 23 Cal.4th 429 , “ [c] ourts long have acknowledged the importance of class actions as a means to prevent a failure of justice in our judicial system. [Citations.] ‘ “ By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repet itious litigation and provides small claimants with a method of obtaining redress

. . . . ” ’ [Citation.] Generally, a class suit is appropriate

‘ when numerous parties suffer injury of insufficient size to warrant individual action and
when denial of clas s relief would result in unj ust advantage to the wrongdoer.’ [Citations.] But because group action also has the potential to create injustice, trial courts are required to ‘ “ carefully weigh respective benefits and burdens and to allow
maintenance of the class action only where substantial benefits accrue both to litigants
and the courts. ” ’ [Citations.] ” ( Id

. at pp. 434

- 435.)

“ Section 382 of the Code of Civil Procedure authorizes class suits in California
when ‘ the question is one of a common or gene ral interest, of many persons, or when the parties are numerous, and it is impracticable to b ring them all before the court.’ To obtain certification, a party must establish the existence of both an ascertainable class and
a well

- defined community of inte rest among the class members. [Citations.] The community of interest requirement involves three factors: ‘ (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representati ves who can adequately represent the class. ’ [Citation.] Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and
whether the class approach would actually serve to deter and redress alleged wrongdoing. [Citation.] ” ( Linder , supra , 23 Cal.4th at p. 435.) “Class certification is generally not decided at the pleading stage of a lawsuit. ‘[T]he preferred course is to defer decision o n the propriety of the class action until an evidentiary hearing has been held on the appro priateness of class litigation.’ [Citation.]9

However, if the defects in the class action allegations appear on the face of the complaint or by matters subject to j udicial notice, the putative class action may be defeated by a demurrer or motion to strike. [Citation.]” ( In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 12 98

- 1299.)
Since “ trial courts are ideally situated to evaluate the efficiencies and pract icalities of permitting group action, they are afforded great discretion in granting or denying
certification. The denial of certification to an entire class is an appealable order [citations] , but in the absence of other error, a trial court ruling suppo rted by substantial evidence generally will not be disturbed ‘ unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation] ’ [Citation

. ] Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal ‘ “ even though there may be substantia l evidence to support the court’ s order. ” ’ [Citations.] Accordingly, we must examine the trial court’ s reasons for denying class certification.

‘ Any valid pertinent reason stated will be sufficient to uphold the order. ’ [Citation.]”
Linder , supra , 23 Cal.4th at pp. 435

- 436.) Despite the great discretion afforded to the trial court, “appellate review of orders denying class certification differs from ordinary appellate review. Under ordinary appellate review, we do not address the trial court’s reasoning and consider only whether the result was correct. [Citation.] But when denying class certification, the trial court must state its reasons, and we must review those reasons for corr ectness. [Citation.]” ( Knapp v

. AT & T Wireless Serv ices , Inc

. (2011) 195 Cal. App. 4th 932, 939 ( Knapp ) ; Accord Linder , supra , 23 Cal.4th at p. 436 [we must examine the trial court’s reasons for denying class certification ].)
Defendants take the position that p laintiff is seeking to overturn the court’s rulin g for his own error. That is, p laintiff failed to request oral argument to contest the court’s tentative ruling. We are not persuaded by this argument. Further, d efendants argue that
the trial cour t is not required to state its reasons in the order denying the motion. While10

d efendant is correct that the trial court is not required to state its reasons in the actual order denying the motion, ( Knapp , supra , 195 Cal.App.4th at p. 939) we must be able to discern from somewhere in the record “whether the trial court engaged in correct legal analysis.” ( Caro v

. Proctor Gamble Company (1993) 18 Cal.App.4th 644, 655.)
Defendants cite Walsh v

. Ikon Office Solutions , Inc . (2007) 148 Cal.App.4th 1440 ( Walsh ) , Dailey v

. Sears Ro e buck & Co

. (2013) 214 Cal.App.4th 974 ( Dailey ) and Grogan

- Beall v

. Ferdinand Roten Galleries , Inc

. (1982) 133 Cal.App.3d 969 ( Grogan

- Beall ) , for the proposition that we can “infer” from the record the reasons upon
which the lower court relied i n denying class certification. Certainly, California courts have held that even if the trial court’s order on class certification does not state reasons, or does so without providing detail, it will be deemed sufficient for review purposes so lon g as the basis for the court’s ruling may be di scerned from the record. (See e.g., Grogan

- Beall , supra , 133 Cal.App.3d 969, 976 [ noting that it

was obvious from the record the certification dispute turned on the issue of commonality
of interest ]. ) Howeve r, in Grogan

- Beall , the trial court decertified the class without explanation after a jury trial. ( Id

. at p. 972.) Accordingly, the Grogan

- Beall court was able to conclude , “ Although the trial court did not state its reasons for the decertification
order , it is clear from the record that the dispute over class treatment turned on the issue of commonality of interest in law and fact. Defendants’ moving papers focused on the assertion that defendants’ liability to each unnamed plaintiff would have to be
in dividually litigated in various respects. Defendants relied on Weaver v

. Pasadena Tournament of Roses (1948) 32 Cal.2d 833 and City of San Jose v

. Superior Court (1974) 12 Cal.3d 447 to argue that the facts developed at the trial , nearly two years after t he original conditional certification, showed that individual issues dominated the case. It is clear that the trial court’s decertification order was based on insufficient commonality to justify class treatment.” ( Id

. at p. 976 , italics added .)11

Plainly, in Grogan

- Beall , the record consisted of the trial record where the parties’ arguments and evidence as well as the court’s own ruling and findings during trial gave
the reviewing court sufficient content and context to determine the basis for the court’s decertification order. There is nothing remotely similar in this case.
In Dailey , supra , 214 Cal.App.4th 974, in a “ brief order , the trial court granted
Sears’ s motion to pre clude and denied Dailey’ s motion to certify the class, concluding
that ‘ the in dividual facts and issues unique to each member of the alleged class and requiring separate adjudication are more numerous and significant than the common
issues. ’ ” ( Id

. at p. 978.) In Dailey , the trial court “ did state its reasons i.e., the predominanc e of individual issues and the ability to bring individual claims before the court.” ( Id . at p. 986. ) Further, the o rder cited “ appropriate legal principles relevant to the predominance and superiority analysis. ” ( Ibid .) Accordingly, the reviewing cour t was able to conclude that the “trial court’s order, elucidated by the parties’ briefing and oral arguments, [was] sufficient to permit meaningful appellate review in [the] case. ” ( Id

. at p. 987, italics added.)
In Walsh , supra , 148 Cal.App.4th 1440, th e trial court “granted IKON's decertification motion on the ground of insufficient commonality. The court explained: ‘Common issues of law and fact do not predominate in this matter with respect to the LDS account manager class, as the circumstances of e ach class member’s employment differs significantly from every other member of the class. As a result, individual hearings on both liability and damages are required for each of the 150 or so class members, as well as the two class representatives, Walsh and Miller. In these circumstances, and on the evidence presented in support of and in opposition to the motion, the Court concludes that common issues of law or fact do not predominate.’ ” ( Id

. at pp. 1452

- 1453.) The Walsh court noted that although “th e trial court did not explain at length why it concluded there was a lack of commonality ” ( id . at p. 1452, italics added) “it did refer to different employment circumstances among the subclass12

members” ( ibid

. ) , accordingly, the reviewing court was able to conclude that “the trial court’s explanation was not so vague that [it was] unable to determine whether substantial evidence support[ed] the decision.” ( Id . at p. 1483.)
The cases to wh ich d efendants cite all involved some degree of written or oral expla nation, even if not detailed, but with some way for the reviewing court to deduce what was the court’s reasoning

. Here, t he trial court’s order denying class certification is devoid of any explanation and nothing in the record of the hearing or anywhere else in the record
illuminates the trial court’s thinking. 12 Defendants cite no authority where the record is
so devoid of explanation that it is impossible to comply with the Supreme Court’s mandate that “we must examine the trial court’s reasons for deny ing class certification.” ( Linder , supra , 23 Cal.4th at p. 436.) We cannot tell if improper criteria were used or erroneous legal assumptions were made. Without some indication in the record of the trial court’s thinking sufficient to give this court in sight into how the lower court reached
its decision , any link between the moving papers and the court’s decision would be pure conjecture on our part. Plainly, our standard of review requires that there be some
enunciation of a reason or basis for denial of class certification from which we can determine the soundness of the lower court’s decision. To hold otherwise would mean that in every case where there is a denial of class certification without explanation in the order or in the record, appellate cou rts would be placed in the role of trial courts, in essence, deciding the matter de novo and supplying a rationale not stated by the trial

court ; such is not our standard of review in evaluating the correctness of a denial of a
motion for class certificati on

. “The right result is an inadequate substitute for an

12 As noted, the hearing on the motion for class certification was scheduled for September 10, 2013. The trial judge adopted the one

- line tentative decision and refused to discuss the matter further.13

incorrect process. Thus the appellate scrutiny should be on the reasons expressed by the trial court in the context of counsel’s arguments , not merely whether the trial court
reached a result [that ] can be justified by implication.” ( Clothesrigger , Inc

. v
. GTE Corp

. (1987) 191 Cal.App.3d 605, 611

- 6 12 ( Clothesrigger , Inc

. ) .)
In Clothesrigger , Inc ., the trial court, in denying a motion to modify the definition of a class in a class action lawsuit, did not engage in the analysis that was required by case law. ( Clothesrigger , Inc

. , supra , 191 Cal.App.3d at p. 612.) Thus, the reviewing

court said , “[o]ur focus on correct process requires us to reverse even though there may
be substantial evidence to support the court’s order.” ( Ibid

. ) We reach a similar
conclusion in this case.
As to d efendants ’ argument that p laintiff failed to request oral argument to contest
the trial cou rt’s tentative ruling, plainly p laintiff was not contesting the ruling ; ra ther , p laintiff was requesting an explanation for the court’s ruling more along the lines of a request for a statement of decision.
As noted ante , Local Rule 8 (E) provides that “a party contesting a tentative ruling must give notice of its intention to a ppear,” and that the tentative ruling will become the order “if the Court has not directed oral argument and if the contesting party fails to timely notice an objection to the other side and the Court.” Plainly, p laintiff’s request for an explanation of t he court’s ruling falls outside this rule. Regrettably, we must remand this case to the trial court to reconsider the motion , and in the event that it again denies the motion , articulate its reasoning. Denial of Plaintiff

’ s Motion to Amend the Complaint to Add a New Class Representative Without argument or citation to au thority, in his opening brief, p laintiff claimed that if the court had entertained concerns as to the adequacy of the class representative, the court should have granted his motion to add a new class representative. Plaintiff presented the following question for our review: “Did the Superior Court abuse its discretion by failing to grant Plaintiff[’ s ] Motion to Amend the Complaint?” Plaintiff14

presented no argument in favor of his positi on that the trial court did abu se its di scretion. In his reply brief, p laintiff claims for the first time that the court erred in denying his motion to amend the complaint to add a new class representative. He presents legal argument and citation to auth o rity to support this position. In general, “ ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citation.] ‘Obviou s reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’ [Citation.]

‘ “ Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for
the first time wil l not be considered, unless good reason is shown for failure to present them before.” ’ [Citation.]” ( Reichardt v

. Hoffman (1997) 52 Cal. App. 4th 754, 764, as
modified on denial of rehearing (Mar. 5, 1997).) An appellant has the burden to demonstrate reversible error with reasoned argument and citation to authority. ( Badie v

. Bank of America (1998) 67 Cal.App.4th 779, 784

- 785 ( Badie ); California Rules of Court, rule 8.204(a)(1)(B), [each brief must state each point under a separate heading or subheadi ng summarizing the point, and support each point by argument and, if pos sible, by citation of authority ].) When an appellant asserts a point but fails to support it with reasoned argument and citations to authority , we treat the p oint as forfeited

. ( Badi e , supra a t pp. 784

- 785.) On appeal we need address only the points adequately raised by p laintiff in his opening brief on appeal. ( Shaw v

. Hughes Aircraft Co

. (2000) 83 Cal.App.4th 1336, 1345 & fn. 6 [appellant forfeits issue by failing to raise it in t he opening brief].) Plaintiff failed to adequately brief the issue of the denial of his motion to amend the complaint to add a new class representative ; accordingl y, we deem the issue forfeited.1516 Disposition The order denying p laintiff’s class cer tificati on motion is reversed

.

_________________________________ ELIA, J.

WE CONCUR:

_______________________________ RUSHING, P. J.

_______________________________ WALSH, J. *

13

* Judge of the Santa Clara County Superior Court as signed by the Chief Justice pursuant to article VI, section 6 of the California Constitution

.Trial C ourt: Santa Clara County Superior Court Superior Court No. 1

- 12

- CV

- 227103

Trial Judge: Hon. Kevin E. McKenney

Counsel for Plaintiff/ Appellant : Miguel Tellez Matern Law Group Matthew J. Matern Rania S. Habib

Counsel for Defendants/ Respondents : R ich Voss T rucking , I nc ., et al., Miller, Morton, Caillat & Nevis David I. Kornbluh Stephanie M. Rocha Co u rtney J. Rogerson

Tellez v

. Rich Voss Trucking , Inc ., et al

. H040375