Filed 5/30/13 Nelson v. Southern Cal. Gas CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ERIC L. NELSON et al.,

Plaintiffs and Appellants,

v.

SOUTHERN CALIFORNIA GAS COMPANY,

Defendant and Respondent. B238845

(Los Angeles County Super. Ct. No. BC451310)

APPEAL from an order of the Superior Court of Los Angeles County. Zaven V. Sinanian, Judge. Affirmed in part, reversed in part.

Marlin & Saltzman, Louis M. Marlin, Kr isten Marquis Fritz; Fitzgerald Lundberg & Romig, Ken M. Fitzgerald and Barbrae Lundberg for Plaintiffs and Appellants.

Paul Hastings, Paul Grossm an, Paul W. Cane, Jr., Leslie L. Abbott, Eric Stevens; Young, Zinn & Bate, Linda Van Winkle De acon and Harry A. Zinn for Defendant and Respondent.

___________________ ___________________2 Plaintiffs Eric Nelson, Juan Mejoredo, an d Robert Dowling sou ght certification of a class action against Southern Californi a Gas Company (the Gas Company). The plaintiffs alleged the company failed to provide meal and rest breaks in accordance with California law, and committed overtime wage violations. The trial court denied certification on the gro unds that the plaintiffs failed to establish common questions would predominate in the action or that class tr eatment would be the superior means of resolving the litigation. We affirm the tria l court order on class cer tification but reverse the order to the extent it purported to deny plaintiffs’ representative claim under the Labor Code Private Attorney Generals Act of 2004 (Lab. Code, § 2698 et seq.; PAGA).

FACTUAL AND PROCED URAL BACKGROUND Named plaintiffs Nelson, Mejoredo, and Dowling worked as “field operations” employees for the Gas Company. Field operations employees work in the “field,” away from a Gas Company facility, dr iving in company vehicles in assigned geographic areas or at specific sites. In their class action lawsuit, plaintiffs alleged the Gas Company violated California wage and hour laws by fa iling to relieve class members of all duties during their meal and rest periods, and by exerting contro l over class members during their meal and rest periods, su ch that they were denied th e meal and rest breaks required by law. Plaintiffs also alleged the Gas Company required class members to perform work “off the clock,” such as donning and doffing coveralls, and booting up or shutting down computers. Based on these factual alle gations, plaintiffs asserted seven causes of action in the operative second amended complain t: (1) failure to pr ovide required meal

and rest breaks in violation of Industrial Welfare Commission (IWC) Wage Order No. 4 (Wage Order No. 4), and Labor Code sections 200, 226.7, and 512; 1 (2) failure to compensate for all hours work ed (Wage Order No. 4; Lab. Code, §§ 200, 226, 226.7, 500, 510, 1194, 1197, 1198); (3) failure to pay overtim e compensation (Lab. Code,

1 All further statutory references are to the Labor Code unless otherwise noted.

On our own motion, we have augmented the appellate record with the second amended complaint.3 § 1194); (4) failure to compensate for all hou rs worked (Wage Orde r No. 4; Lab. Code, §§ 200, 226, 226.7, 5 00, 510, 1194, 1197, 11 98); (5) failure to furnish accurate wage statements (Lab. Code, § 226); (6) failure to pay compensation upon discharge (Lab. Code, §§ 201-203); and (7) viol ations of Business and Profe ssions Code section 17200 et seq. (UCL). Plaintiffs also assert ed a claim for remedies under PAGA. The Gas Company filed a mo tion for an order declaring the suit inappropriate for class treatment and denying representative st atus for the PAGA claim. Plaintiffs subsequently filed a motion for class certifica tion. Plaintiffs sought certification of a

class defined as: “All individuals who are cu rrently employed, or formerly have been employed, as non-exempt Field Operations employees for Southern California Gas Company during the Class Pe riod. Excluded from the Cl ass are Meter Readers and current and former employees who work only at a base location (as opposed to in the field) including, but not limited to, Field Planners .” Plaintiffs also sought certification of two subclasses, one composed of class me mbers whose employment required them to wear employer-supplied coveralls and other protective gear, and one composed of class members whose employment had been terminated.

Motion for Certification In the certification motion, plaintiffs ar gued the Gas Company had formal policies that were applied to all field operations em ployees, and these policies established the Gas Company was not provid ing lawful meal and rest break s and required “off-the-clock” work. They offered documentary and testimonial evidence in support of the motion,

which we summarize below.

Written Policies Plaintiffs provided copies of the Gas Company’s written policies, including an Employee Conduct and Responsibilities manual with an effective date of September 2006. On company vehicles, the manual prov ided that company vehicles are “operated only in the performance of Company busine ss by authorized employees who are 18 years of age or over.” In a sec tion on work assignments, the manual indicated field employees are required to “retrieve and route their orders on or after the star t of their shift. . . . [¶]4 . . . Employees are expected to be in their assigned work area unless otherwise approved by a supervisor. Travel between work ar eas is by the most re asonably direct, and

efficient route.”

The manual included a section on work schedules, coffee breaks, and lunch periods. The section provided that field employees are entitled to take two 10-minute breaks and, when working more than six hours in a given day, the employee is required to take a meal period before the en d of the fifth hour of work. 2 This section also stated: “Field employees may carry coffee, tea, milk etc., and take a rest period as work permits. Coffee and other beverages are not prepared on th e job. . . . [¶] . . . Field employees are to avoid coincidental meetings of more th an two persons or more than one crew. Prearranged meetings are prohibited.”

In a section of the manual titled “Con duct,” the document indicated company coveralls and uniforms “are worn only in the performance of Company work or Company-approved activities. Two-piece uniforms may be worn to and from work.” The manual indicated employees are prohi bited from consuming alcoholic beverages during working hours, “whether on or off of Company premises.”

Plaintiffs also offered s ubsequently revised manuals containing similar provisions to those identified above. A copy of the manual with a February 2011 revision date indicated coveralls and two-piece uniforms c ould be worn to and from work, and stated employees were allowed to take uniforms or c overalls home if required to report to work

with a uniform or coveralls. Plaintiffs’ evid ence also included copies of a provision from the collective bargaining agreement stati ng certain employees would be provided coveralls, and employees would not take the c overalls home at night except in specified

circumstances. Plaintiffs attached a separate “gas sta ndard” for crew operations which set forth rest period criteria. The standard allowed for crew operations employees to take rest

2 This section also includ ed guidelines for meal periods when an employee works more than 10 hours in a shift.5 periods or coffee breaks, with the “Lead C onstruction Technician’s approval, when the entire time away from the job does not exceed 15 minutes nor more frequent than one morning and one evening break and: [¶] . . . May be taken en route to the first job or to the base following the last job, if the travel time exceeds 1-1/ 2 hours or, [¶] . . . They drive by or stop near a restaurant or store en route to their next job by a direct route, provided parking space is available nearby and th e stops are of short duration or, [¶] . . . When working within a reasonabl e walking distance of a restaurant or store. One or two crew members at a time may leave the job to obt ain coffee or soft drinks. The crew truck is not left unattended nor used for transportati on in these cases or, [¶] . . . A ‘coffee truck’ stops at or nearby the job location.” The policy further indicated an employee was permitted to carry a beverage and take a short coffee break as the work permitted, but noted, “It is not intended, however, that coffee or other hot or cold drinks be prepared on the job.” Declarations of Named Pl aintiffs and Arturo Frias The named plaintiffs declared Gas Compa ny policy required them to be available at all times during their shifts to respond to emergencies, including during meal and rest breaks. Plaintiffs further declared Gas Comp any policy required that if field operations employees are contacted, including during a m eal or rest break, the employee is required to acknowledge the contact to determine wh ether it is an emergency. Plaintiffs additionally declared Gas Comp any policy required field opera tions employees to be in their assigned work area unless they had supervis or approval to be out of the area; they were required to always be “in route” durin g their work shifts; they were required to drive a company vehicle but were not allowe d to use the vehicle during meal and rest periods; they could only take rest breaks as “work permits”; and they were prohibited from having prearranged or coincidental meetings of more than two persons or more than

one crew of workers. Nelson declared he was disciplined in 2004 for being “out of route” and using a Gas Company truck for transp ortation during a lunch break. Plaintiffs declared Gas Company policy prohibited fi eld operations employees from consuming alcoholic beverages during work ing hours, and two of the name d plaintiffs also declared6 that under Gas Company policy they were not allowed to prepare coffee or other beverages on the job site. According to plain tiffs, they were prohib ited from taking their coveralls home, but were also required to wear them only when working. They additionally declared they we re required to perform work-re lated duties before and after their scheduled shifts, and they were not paid for the time.

Plaintiffs’ evidence included the declara tion of a union representative, Arturo Frias. Frias declared, based on his persona l knowledge and disciplinary records he had seen, that he was aware Gas Company employ ees had been disciplined for being out of route, using company vehicles during their meal and rest periods, having coincidental or prearranged meetings during meal or rest pe riods, consuming alcoholic beverages during meal or rest periods, taking coveralls home, and for not responding to calls from supervisors or dispatch during a shift. Deposition Testimony of Gas Company Supervisors Plaintiffs offered excerpts from the depos itions of 13 Gas Company supervisors. The supervisors all testified that one of their responsibilities wa s to enforce company policies, or to review the company’s policie s with the employees they supervised to ensure compliance. Several supervisors testif ied that the employees they supervised used company vehicles equipped with a communi cation device or radio that allowed employees to be contacted. Several confirme d that the company trucks were equipped with a horn that could be remotely honked if the radio was not answered. There was also testimony that employees used mobile data terminals, a form of laptop computer.

In the included exce rpts, the supervisors testifie d that employees had to be

reachable at all times while “o n duty,” or available to be contacted by some method in case of an emergency. One supervisor tes tified if there was an emergency during work hours, one of two types of field employees would respond, but there was no particular time frame because “all emergencies are differe nt.” Another testified if an employee received a contact during a meal break, the employee would respond if it was an emergency and, once the area is made safe, th e employee would start the lunch or break.7 Others testified if it was not possible to restart the meal period, the employee would receive an extra hour of pay. Regarding the policy that employees stay “i n route,” 10 of the supervisors testified this meant going from one job to the next, and not going somewhere that was not on the way, or not deviating from the most direct route to the job site, or taking the “most efficient” route. One supervisor testified that employees were told to stay “en route,” but not that there was “a certain mileage you can go before we call you out of route.” Five supervisors testified they were aware an empl oyee could be disciplined for not staying in

route. Deposition Testimony of Gas Company Person Most Knowledgeable Witness Plaintiffs further supported their moti on with excerpts from the deposition of a person most knowledgeable (PMK) witness fo r the Gas Company, Frank Ayala. Ayala testified that employees were supposed to take a meal break in the “general proximity of

where their last order is or their next orde r.” Ayala indicated th ere was no written policy defining in or out of route, or any set distan ce or mileage determining what is “in route,” but the company relied on the employee’s “ good judgment,” and “coaching” from supervisors, who also used their judgment to determine “reasonable proximity.” Ayala testified employees were allowed to conduct personal business on meal and rest breaks. He said when there was an emergency call, employees were required to respond “as quickly as they can safely respond when they are given the work.” He testified employees with various job titles were to be available at all times to respond to emergencies during their shifts. Although the company tried to avoid interrupting an employee’s meal or rest breaks, “if it is an emergency and they are the closest person,” an employee taking a meal or rest break might be interrupted by an emergency call, and could be subject to disciplinary action for failing to respond. Gas Company Opposition The Gas Company contended class treatmen t was inappropriate because some of the plaintiffs’ theories were legally un tenable, and their claims would require individualized proof.8 Putative Class Member Declarations To support the motion seeking an order de claring the action inappropriate for class treatment, and in opposition to plaintiffs ’ certification motion, the Gas Company

submitted declarations from 58 field operations employees. Some declarations were short preprinted forms, with spaces for the employees to mark responses by hand. The form declarations addressed how frequently the employee wore coveralls, whether she or he was permitted to take the coveralls home, and whether he or she was required to change into coveralls at the base before cloc king in for a shift, or required to change out of coveralls at the base after clocking out fo r the day. Most declarants indicated they were permitted to take their coveralls home. Some, but not all, indicated they were required to change into coveralls at the base before they were clocked in for the day. Most reported they were not requ ired to change out of coveralls at the base after clocking out for the day. The form also addressed meal periods, allowing the declarants to indicate how frequently they were able to take a “duty -free 30-minute meal peri od within 5 hours of starting work,” and whether or how often they were allowed to leave the job site for a meal period. With respect to occasions when the employee took a meal period at the job site, the declarations asked employees to a ssess the percentage of time that was the employee’s free choice, because a member of management said the employee had to remain at the site, because of an emergency, or for another reason. There was a range of responses. One declarant reported only bein g able to take a duty-free meal period 45 percent of the days he worked. Some declarants indicated they were able to leave the job site for a meal on only 5 per cent of the days th ey worked. However, others reported being able to take duty-free m eal periods 100 percent of the days they worked, and they were able to leave the job s ite 100 percent of the time. The Gas Company’s declarations also incl uded longer prose-style declarations addressing meal and rest periods. These decl arations contained te xt indicating the Gas Company had never pressured the employee to skip meal or rest periods, and the employee was allowed to place active orders on hold to take a meal period. The9 declarations included language indicating how often the empl oyee had the opportunity to take an “off-duty meal period of at leas t 30 minutes,” whether the employee always

decided when and where to take meal a nd rest periods, and whether the employee understood the Gas Company expected the em ployee to accurately record meal period start and stop times. Some declarants re counted receiving prem ium pay on occasions when they were unable to start a meal pe riod within 5 hours of starting work. One individualized paragraph desc ribed how the employee usually spent his or her meal and rest periods, most included the sentence: “I am allowed to leave my work vehicle unattended during meal and rest periods as l ong as I lock it.” Some employees stated they brought lunch from home and sat in the truc k or in a park to take the meal break. Others described buying a meal and taking a me al break outside of th e truck, or taking a

“reasonable detour” between orders to take a break. Several declared they usually took

rest breaks at fast food restaurants or stores. Some of the longer declarations also de scribed a process by which the employee could keep track of an interrupted meal peri od so as to be paid for the time. Several included a paragraph i ndicating that when the declarant received a message during a meal period to respond to an emergency call, he or she interrupted th e meal, recorded the interruption, and responded to the emergency. Numerous declarants also stated if the interruption was not for a particular type of emergency (an “A-1 leak order”), they could ignore the message and respond after the meal break, or tell th e dispatcher they were on lunch and they woul d not be disturbed. 3 Some included a paragraph stating they would send a message to the dispatch er notifying him or her that they were starting a meal period so they would not be contacted during that time. A few decl arants noted they did not always carry a communications device with them when they were on meal or rest

breaks.

3 Some declarants indicated they were ra rely interrupted during their meal breaks. Others were silent on how of ten they were interrupted.10 The declarations further discussed the policy regarding Gas Company uniforms; most indicated they were allowed to take their uniforms home and had the option to change in and out of uniform at home. Ma ny declarants in these longer declarations indicated no Gas Company management had ever told them they needed to change into or

out of a uniform or coveralls at the base befo re or after their shif t. With respect to coveralls, many declared they did not always wear coveralls and cha nged into and out of them on paid working time. Gas Company Supervisor Declarations The Gas Company additionally provided declarations from 12 supervisors who worked at different bases, all of whom pl aintiffs had deposed. These declarations suggested supervisors at different bases had different expectations about what communication devices employees were required to carry, if any. Many of these supervisors declared they had rarely or never called employees on their cell phones or paged employees during meal or rest breaks to have the employee respond to an emergency. Eleven of th e twelve declared that when they called employees, they always asked if they were av ailable, and, if the employee was on a meal or rest break, they told the employee they could return the contact after the break was finished. All declared they had never disciplined an employe e for failing to respond to a call or a page. 4 Some supervisors declared that if they (personally, or through dispatch) contacted an employee about an emergenc y, they made known whether it was an emergency that required an immediate response or one that could be handled after a break or ongoing order. The supervisors further explained the cust omary practices at their bases regarding the definition of “in route,” the personal use of company ve hicles during meal and rest breaks, the prohibition on prepar ing coffee, and the prohibiti on on meetings of two or more employees. Some supervisors interprete d “in route” as allowing employees to use a

4 The declarations did not discuss how frequently employees failed to respond to calls or pages, if at all.11 company vehicle to drive “a few minutes” or “a few blocks” out of “the most direct route between two orders,” or to take a “reasona ble detour,” or to take a “a reasonable detour . . . as long as they are heading in the same direction as their next order.” Several of the supervisors indicated employees could take their breaks anywhere they wanted

“within the break timeframe.” Two indicated their employees were allowed to drive company vehicles “farther out of the most direct route . . . during breaks if that is how they choose to sp end their time.” All of the supervisors declared employe es “routinely” used company vehicles

between work orders to drive to locations such as restaura nts, convenience stores, or “other locations,” to take their meal or rest breaks. All declared they had never disciplined an employee for using a company vehicle to drive to a location in their assigned geographic area to take a meal or rest period. Most, but not all, of the supervisors de clared there was no prohibition on coffee preparation at their bases during meal or rest periods. 5 All noted that the issue had never come up because employees “p refer to stop at a local coffee shop or bring beverages from home,” or in some cases took coffee provi ded at the base. All of the supervisors acknowledged the company’s prohibition on prearranged or coincidental meetings. All but one of the supervis ors declared the requiremen t that company attire only be worn when performing work did not apply to employees during meal and rest breaks, and employees were allowed to wear uniform s or coveralls during those times. All but one further declared employees were free to wear their coveralls and uniforms to and

from work. All but one of the supervisors declared that empl oyees often returned to the base to shower and change out of their wo rk clothes while on the clock, assuming they

were able to finish in the fiel d before the scheduled end of their shifts. In addition, they all declared that employees were not required to boot up computers before the start of a

5 One noted there was no prohibition on preparing coffe e so long as employees did not use a “blow torch or other de vice to heat their beverage.”12 shift; all but one further declared employees we re not required to omit the time it takes to shut down the computer fro m their time sheets. The Gas Company’s evidence also included an excerpt from the PMK deposition, in which Ayala testified: “I am not aware of specific restrictions [on what employees can do during their meal and rest break times] other than they are not supposed to be traveling long distance on a route. They are supposed to take an uninterrupt ed meal break in the general proximity of where their either last order is or their next order. [¶] . . . [¶] . . . They get a certain number of orders in a cert ain geographic area. And they are expected to stay in that geographic area and take thei r meals within a reasonable proximity of those orders.” The Gas Company also included excerpts from several supervisor depositions, in which the supervisors test ified they were unaware of the collective bargaining provision prohibiting employees from taking coveralls home. Trial Court Ruling

The trial court denied the motion for cl ass certification. Although it concluded plaintiffs had established the proposed cla ss was ascertainable and sufficiently numerous, and that the named plaintiffs would be ade quate representatives, the court determined common questions would not predominate in the litigation of the class claims. The court

found the evidence demonstrat ed the Gas Company’s policy was for field employees to receive messages, even during breaks. Ho wever, the court explained there was no set time in which employees were required to re spond, and some employees did not respond during their meal breaks. The court ther efore concluded “whether a class member actually responded to a messag e during their meal break is a question that cannot be

determined on a classwide basis because of va riations in practice.” The court dismissed plaintiffs’ arguments regarding the prohibitio n on alcohol consumpt ion and pr eparation of hot beverages as irrelevant. As to the “in route” restriction, the court concluded the Gas Company policy involved no specific geographic limitation a nd each supervisor was able to determine what was reasonable. As a result, the cour t concluded “[w]hether the requirement that the class members stay ‘en route’ amounts to su ch a restriction that Defendant remains in13 control of their meal breaks, cannot be dete rmined for the entire class and would require individualized analysis. In other words, ther e are differences in how the rule is applied by supervisors that would create individuali zed questions for puta tive class members.” The court determined plaintiffs did not provide evidence that a rule against conducting personal business duri ng meal breaks was uniformly applied to the class. Similarly, the court concluded the plainti ffs had not established a rule prohibiting meetings of more than two persons or more than one crew was applied to the class because the plaintiffs provide d only their own declarations as evidence. The court

concluded these three issues—whether class members’ meal breaks were interrupted by messages to which they responded or did not re spond to; the application of a rule against personal business; and the a pplication of the rule agai nst class members meeting— presented numerous individualized inquires.

On the off-the-clock work claim, the court concluded there was no evidence any rule prohibiting putative class member s from taking coveralls home was applied uniformly to the class. Likewise, the court determined plaintiffs provided no evidence the time employees spent booting up or tu rning off computers was required to be performed off the clock. The court found individual qu estions were likely to arise in the litigation rather than common ones, thus class tr eatment would not be superior or substantially beneficial to the litigants or the court. The court furthe r held plaintiffs could not bring their PAGA claim as a representative action because i ndividual issues woul d predominate and a representative action would not be manageable . The court sustained several evidentiary objections to the Frias declaration, and al so concluded plaintiffs’ cocounsel Ken M. Fitzgerald was not qualifie d to act as class counsel. 6 Plaintiffs’ appeal timely followed.

6 The court noted Fitzgerald might be able to overcome the deficiencies the court identified, “if he can show that he is prepar ed to prosecute the case in association with Louis P. Marlin, who is qualified to act as class counsel.”14 DISCUSSION I. Legal Principles of Class Certification As both sides acknowledge, the Californi a Supreme Court recently considered issues surrounding the certification of cla ss action claims for meal and rest break

violations in Brinker Restaurant Corpora tion v. Superior Court (2012) 53 Cal.4th 1004 ( Brinker ). The court summarized the general require ments for certification of a class: “The party advocating class treatment must de monstrate the existence of an ascertainable and sufficiently numerous class, a well-defi ned community of interest, and substantial benefits from certification that render proceedi ng as a class superior to the alternatives. (Code Civ. Proc., § 382; [citations].) ‘In tu rn, the “community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typica l of the class; and (3) class representatives who can adequately represent th e class.” ’ [Citation.]” ( Id. at p. 1021.)

As in Brinker , the disputed issue in this case is whether individual or common questions would predom inate in any classwide litigation. The Brinker court explained “[t]he ‘ultimate question’ the element of pre dominance presents is whether ‘the issues which may be jointly tried, wh en 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.’ [Citations.] The answer hinges on ‘whether the theory of recovery advanced by the proponents of ce rtification is, as an analytical matter, likely to prove amenable to class treatment.’ [Citation.] A court must examine the allegations of the complaint and supporting declara tions [citation] and consider whether the legal and factual issues th ey present are such th at their resolution in a single class proceeding would be both desirable and feasible. ‘As a general rule if the defendant’s liability can be de termined by facts common to all members of the class, a

class will be certified even if the members must individually prove their damages.’ [Citations.]” ( Brinker

, supra , 53 Cal.4th at pp. 10 21-1022, fn. omitted.)15 The Brinker court further explained the task of the reviewing court: “On review of a class certification order, an appellate court’ s inquiry is narrowly circumscribed. ‘The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appe al, reversing only for a manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great disc retion in granting or denying certification.” [Citation.] A certific ation order generally will not be disturbed unless (1) it is unsupported by substantial evid ence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’ [Cita tions.] Predominance is a factual question; accordingly, the trial court’s finding that common issues predominate generally is reviewed for substantial evidence . [Citation.] We must ‘[p]resum[e] in favor

of the certification order . . . the existence of every fact the trial court could reasonably deduce from the record. . . .’ ” ( Brinker, supra, 53 Cal.4th at p. 1022, citing Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4t h 319, 328-329 ( Sav-On ).)

II. The Trial Court Did Not Abuse It s Discretion in Denying Certification

Plaintiffs contend the trial court erred in concluding individual questions would predominate in the litigation. Specifically, plaintiffs argue the ev idence showed specific Gas Company policies were app licable to all putative clas s members. Based on those policies, plaintiffs assert th e Gas Company failed to provid e class members with legally compliant meal and rest breaks, and caused employees to work off the clock. We separately consider the meal/rest br eak claim and the off-the-clock claim. 7

7 The trial court did not sepa rately address plaintiffs’ rest break claim. On appeal, plaintiffs do not separately address the trial court’s error, if any, in denying certification of a rest-period class. Thus , without deciding that any me al break analysis was wholly applicable to the rest break claims , we consider the claims together.16 A. Meal/Rest Breaks 1. Relevant Legal Background We first briefly consider the underlying le gal principles applicable to plaintiffs’ claims. Under Wage Order No. 4, “N o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . . Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘o n duty’ meal period and counted as time worked.” (Cal. Code Regs., tit. 8, § 11040, subd. 11(A).) “An employer also has a duty to authorize and permit rest breaks; the numbe r of breaks depends on the length of the shift. (Cal. Code Regs, tit. 8, § 11040, subd. 12; Brinker

, supra , 53 Cal.4th at pp. 1028- 1031.)” ( Bradley v. Networkers International, LLC (2012) 211 Cal.Ap p.4th 1129, 1149 ( Bradley ).) Plaintiffs’ legal theory hi nges on whether the field operations employees were “relieved of all duties,” and whether Gas Company restrictions on employee conduct converted meal periods into “hours worked.” 8 Plaintiffs rely on cases such as Madera Police Officers Association v. City of Madera (1984) 36 Cal.3d 403 ( Madera ), in which the California Supreme Court concluded th e “substantial limitations” placed on the plaintiff police officers during their noncompe nsated meal periods “converted that time into hours worked.” ( Id. at p. 409.) The court adop ted a two-step analysis that

considered “whether the restrictions on o ff-duty time are primarily directed toward the fulfillment of the employer’s requirements and policies,” and “whether the employee’s off-duty time is so substantially restricted that they are unable to engage in private pursuits.” ( Ibid. ) Madera did not involve state wage and overtime laws. But courts have

8 California law requires employers to pa y employees for all hours worked, and the IWC wage orders largely define “hours wo rked” as “the time during which an employee is subject to the control of an employer, an d includes all the time th e employee is suffered or permitted to work, whether or not required to do so.” (See Cal. Code Regs., tit. 8, § 11040, subd. 2(K); Morillion v. Royal Packing Company (2000) 22 Cal.4th 575, 581 ( Morillion ) [all 15 wage orders contain same defi nition of hours work ed, with exception of two which include a dditional language].)17 since applied a similar analysis to worker s in other industries governed by state Labor Code provisions and wage orders, largely in “on-call” contexts other than meal periods. Thus, for example, in Morillion

, our high court concluded time agricultural workers were required to spend on the employe r’s shuttle bus taking them to the fields was compensable. ( Morillion, supra , 22 Cal.4th at p. 595.) Du ring this travel time, the plaintiff workers were “foreclosed from numerous activities in which they might otherwise engage if they were permitted to travel to the fields by their own transportation,” such as running errands requiring the use of a car or stopping for breakfast. ( Id. at p. 586.) The employer thus prohibited the worker s from “effectively using their travel time for their own purposes.” ( Ibid. ) The court explained in part, the “level of the employer’s control over its empl oyees, rather than the mere fact that the employer requires the employees’ activity, is determ inative . . . . [¶] . . . [¶] . . . by requiring employees to take certain transp ortation to a work site, employers thereby subject those employees to its control by de termining when, where, and how they are to

travel. Under the definition of ‘hours work ed,’ that travel time is compensable.” ( Id. at pp. 587-588, citations omitted; see also Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 373-376 ( Seymore ) [workers on oil spill rec overy vessels; standby time during two-week work periods]; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1535 ( Ghazaryan ) [describing multifactor te st set forth by Ninth

Circuit in Berry v. County of Sonoma (9th Cir. 1994) 30 F.3d 1174, and adopted in Department of Labor Standards Enforcement (D LSE) opinion letter of Dec. 28, 1998].) Similarly, in Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968 ( Bono ), disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 574, the court conclu ded a DLSE decision requiring an employer to pay employees for meal periods if the employees are required to remain at the worksite, was consistent with the IWC wage order definition of “hours worked” and the requirement of a duty-free meal period. ( Bono , at pp. 974-975.) The court explained: “When an employer directs, commands or rest rains an employee fro m leaving the work place during his or her lunch h our and thus prevents the employee from using the time18 effectively for his or her own purposes, that employee remains subject to the employer’s control. According to [the definition of h ours worked], that employee must be paid.” ( Id. at p. 975; see Morillion, supra, 22 Cal.4th at p. 583.) A 1992 DLSE opinion lette r specifically addresses the issue of whether an employee who is required to wear a pa ger during a meal period is entitled to compensation for that meal period. 9 The DLSE opinion lette r noted the analysis of

Madera “is not so responsive to situations i nvolving such use during scheduled meal periods because of the specific requirement that meal periods be ‘duty free.’” (DLSE Opn. Ltr. No. 1992.01.28, pp. 2-3.) The DL SE then articulated the following policy: “If the employee is simply required to w ear a pager or respond to an in-house pager during the meal period there is no presumption that the employee is under the

direction or control of the employer so long as no othe r condition is put upon the employee’s conduct during the meal period. If, on the othe r hand, the employer requires the employee to not only wear the pager or liste n for the in-house paging system, but also

to remain within a certain distance of a te lephone or otherwise limits the employee’s activities, such control would requ ire that all of the meal period time be compensated. [¶] So long as the employee who is simply requi red to wear the pager is not called upon during the meal period to respond, there is no requirement that the meal period be paid for. On the other hand, if the employee resp onds, as required, to a pager call during the meal period, the whole of the meal period must be compensated.” (DLSE Opn. Letter No. 1992.01.28, p. 3.) And, more recently, in Brinker , the court explained the fundamental employer obligation associated with a meal break is “to relieve the employee of all duty and relinquish any employer control over the empl oyee and how he or she spends the time.” ( Brinker

, supra , 53 Cal.4th at pp. 1038-1039.) The court further summarized the

9 DLSE opinion letters are not controlli ng upon the courts but “ ‘ “ ‘ “constitute a body of experience and inform ed judgment to which courts and litigants may properly resort for guidance.” ’ ” ’ ” ( Brinker, supra, 53 Cal.4th at p. 1029, fn. 11, citations omitted.)19 employer’s duty with respect to meal breaks as satisfied if the employer “relieves its employees of all duty, reli nquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” ( Id. at p. 1039.) 2. Analysis

Plaintiffs contend their meal /rest break claim is based on the theory that field operations employees were neve r relieved of all duties during breaks, even if they never were called upon to perform a ny work-related duties. Plaintiffs argue that Gas Company policy required field operations employees to be available to respond to emergency contacts during their meal and rest breaks. They further contend the Gas Company uniformly applied other restrictions to puta tive class members on break periods, such that

the breaks were transformed in to “on-duty” periods. The Gas Company argues there is no evid ence of a uniform companywide policy regarding putative class members’ conduct except that they mu st respond to certain rare emergency calls, and that policy alone is an insufficient basi s of liability. It contends that

to the extent there were other conditions placed on some employees, these were not companywide policies, thus class treatment is inappropriate because individual questions would predominate in any de termination of what thos e limitations were, or how restrictive they were. To the extent there were other companywide policies, the Gas Company contends plaintiffs’ th eories based on these restric tions cannot support liability. The issue before the trial court, and before us, is class certification only. “ ‘The certification question is “essentially a procedur al one that does not ask whether an action is legally or factually meritorious.” ’ [Citations.]” ( Brinker, supra, 53 Cal.4th at p. 1023.) Whether plaintiffs’ theories of liability are ultimately valid or invalid, in considering the predominance el ement, the trial court’s task was to determine “ ‘whether the theory of recovery advanced by the prop onents of certification is, as an analytical20 matter, likely to prove amenable to class treatment.’ [Citation.]” 10 ( Id. at p. 1021.) And,

Brinker instructs that “[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.” ( Id. at p. 1033, italics added.) In this case, then, the question was wh ether plaintiffs presented substantial evidence of a systematic comp any policy or policies that a llegedly rendered break periods compensable as hours worked. (See Brinker, supra, 53 Cal.4th at p. 1051 [class treatment inappropriate where plaintiff did no t present substantial ev idence of systematic company policy to require off-the-c lock work].) Plaintiffs alle ge the failure to relieve of duties is demonstrated by several of the Ga s Company’s companywid e policies that are applicable to all putative class members. Bu t the trial court concluded the evidence did not demonstrate these policies were in fact uniformly applied to all putative class members, thus requiring individualized ques tions as to the degree of restraint the company imposed on individual members during their meal and rest breaks.

We are mindful of the standard of review: “[I]n the absence of other error, a trial court ruling supported 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 ‘ “e ven though there may be substantial evidence to support the court’s order.” ’ [Citations.] Accordingly, we must examine the trial

10 In Brinker , the court reiterated that in general, a court should not decide the merits of a plaintiff’s legal theory in the context of a class certification decision. While parties may jointly consent to have a court decide the merits of underlying substantive legal issues ( Brinker, supra, 53 Cal.4th at p. 1026; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 443 ( Linder )), here plaintiffs did not request or co nsent to a decision on the merits of its legal theories. Further, the trial court’s analysis was by and large focused only on the certification question and avoided the merits of plaintiffs’ claims. Thus, the Gas Company’s extended briefing regarding the validity of plaintiffs’ legal theories is irrelevant to the issues presented in this appeal and we need not consider those arguments.21 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.) We turn first to one of the plaintiffs’ critical allegations, that the Gas Company policies prevented putative cl ass members from engaging in personal business during their breaks. Substantial evidence supported the trial court determination that plaintiffs

did not establish the existence of a uniform , consistently applie d policy, restricting employees from conducting pers onal activities during their meal and rest breaks. Initially, we note there was no evidence that Gas Compa ny had any policy,

whether formal or informal , explicitly prohibiting employ ees from conducting personal business during meal breaks. Indeed, plai ntiffs’ evidence included deposition testimony from a Gas Company PMK witness who testifie d that field operations employees are allowed to conduct personal business during thei r breaks. Even the named plaintiffs did not declare they were exp licitly prohibited from conducti ng personal business during breaks. However, plaintiffs alleged a wr itten policy prohibiting the personal use of company vehicles and the requirement that employees stay “in route” severely limited putative class members’ ability to engage in any personal activities. Yet, despite the written policy prohibiting the pe rsonal use of company vehicl es, there was substantial

evidence before the trial cour t indicating this was not a uniform prohibition consistently applied across the company disallowing persona l use of vehicles during breaks. Gas Company evidence included declarations from multiple supervisors indicating employees under their supervision were allowed to drive company vehicles to fast food restaurants, convenience stores, or “other locations,” to take their meal or rest breaks. Several declared their supervisees were allowed to take their breaks anywhere they wanted, limited only by the amount of time they had for the break. The Gas Company further provided evidence indicating putative class members were free to go anywhere they wished on foot, after parking an d locking the company vehicle. The trial court could reasonably conclude plaintiffs did not present evidence establishing the prohibition against personal use of company vehicles was a uniform policy consistently applied to putative class members, particularly as it related to an22 alleged restriction on condu cting personal business during breaks, such that it would

be amenable to a comm on method of proof. ( Sav-On, supra, 34 Cal.4th at p. 328 [“ ‘[W]here a certification order turns on in ferences to be drawn from the facts, “ ‘the reviewing court has no authority to s ubstitute its decision for that of the trial court.’ ” ’ ”].) Similarly, there was evidence establishi ng a companywide policy of requiring employees to stay “in route,” but there was also evidence indicating there was no uniform definition of the term, and vari ations among supervisors as to their interpretation of the requirement. While some supervisors decl ared employees were given leeway during breaks so long as they were heading in the same direction as their next order, others considered it acceptable for employees to drive a few minutes or a few blocks out of the route during a break; some indicated they to ld employees they could drive even farther afield if that is how they wi shed to spend their break time. This issue is: was there a uniformly applied companywide policy that would allow for a common method of proof? Was ther e substantial evidence to support the trial court’s finding that plaintiffs did not make a factual showing that th e policies they alleged could be established by comm on evidence? Given that plai ntiffs’ theory of liability depends on the level of rest riction and control exercise d over putative class members during their meal breaks, substantial evidence supported the trial court’s determination that individual questions wo uld predominate on the issue of whether the prohibition on personal use of company vehi cles applied during meal br eaks, and the “in route” requirement, constituted a level of control that turned the breaks in to compensa ble time. Plaintiffs alleged other Gas Company polic ies demonstrated it exerted control over putative class members during their meal brea ks, and that these we re also companywide policies. However, we need not consider each policy individually. Pl aintiffs’ theory of liability is that the Gas Co mpany did not provide puta tive class members duty-free meal/rest periods because it did not relinquis h control over them. The legal authorities upon which plaintiffs rely indi cate the central issues are the level of control, and whether23 employees may use the break time for their own purposes. (See, e.g., Morillion, supra, 22 Cal.4th at pp. 583, 586-587; Bono, supra, 32 Cal.App.4th at p. 975.) For example, in Seymore , and Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 523, courts attempting to determine whether on-call time was comp ensable considered factors such as excessive geographical rest rictions on employee’s movements, the frequency of calls while the employees were on call, “ ‘ “whether a fixed time limit for response was unduly restrictive,” ’ ” and “ ‘ “whether the employee had actually engaged in personal activities during call-in time.” ’ ” ( Seymore, supra, 194 Cal.App.4th at p. 374; Gomez, at p. 523.) Assuming without decidi ng that the reasoning of these cases would be persuasive in a case involving meal or rest breaks rather than “standby” or “on call” time, the cases explain that the extent to which plaintiffs are able to use the challenged time for personal activitie s is a critical factor. ( Seymore, at p. 374; Gomez , at pp. 523-524.) Here, there was substantial eviden ce the Gas Company did not have a companywide policy consisten tly applied to putative clas s members relating to the personal use of company vehicl es, or uniform geographic restrictions, that directly or indirectly limited field operatio ns employees’ ability to use their break time for personal activities. ( Brinker, supra, 53 Cal.4th at pp. 1033, 1051; Sav-On, supra, 34 Cal.4th at p. 338; Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723, 733.) Given the centrality of this allegati on to plaintiffs’ theory of liability, the trial court could reasonably conclude in dividual questions woul d predominate in any litigation of their claims, even if there was also evidence of some companywide policies governing employee availability for emergencies or re straints on employee conduct during breaks. Two cases reaching different results on certification illustrate the point. In Ghazaryan, supra, 169 Cal.App.4th 1524, a limousine dr iver sought certification of a

class action on behalf of sim ilarly situated drivers. The action alleged the employer violated wage and hour laws by failing to compensate drivers fo r on-call time between assignments. The Court of Appeal concluded that on the community of interest factor, the trial court erred in denying certifica tion because it incorrectly focused on the24 difficulty of evaluating the validity of the employer’s compensation policy in light of variations in how drivers spent their on-call ti me, rather than on th e reasonableness of the employer’s policies as applied to its drivers as a whole. ( Id. at pp. 1527-1528, 1534.) The court noted the record revealed the empl oyer dictated to a large extent how the drivers used their time, in part through a handbook distributed to all drivers which set forth various policies governing drivers’ co nduct and activities duri ng the on-call periods.

The limitations described in th e handbook applied “across th e board” to all drivers who had on-call time. ( Id. at p. 1536.) Although the em ployer offered evidence suggesting

some drivers used their on-call time for thei r own purposes, the court concluded this evidence did not change the fundamental legal question pres ented by the suit. The court explained: “Although individu al testimony may be relevant to determine whether these policies unduly restrict the ability of drivers as a whole to utilize their on-call time for personal purposes, the legal ques tion to be resolved is not an individual one. To the contrary, the common legal question remain s the overall impact of [the employer’s] policies on its drivers, not whet her any one driver, through the incidental convenience of having a home or gym nearby to spend his or her gap time, successf ully finds a way to

utilize that time for his or her own purposes.” ( Ibid .)

In Soderstedt v. CBIZ So uthern California, LLC (2011) 197 Cal.App.4th 133 ( Soderstedt ), the court reached a different result. The plaintiffs were accountants seeking certification of a class to prosecute wage and hour claims resulting largely from misclassification. The plaintiffs argued th eir claims were subject to common proof because the classification qu estion could be resolved by evaluating the employer’s policies and procedures. ( Id. at p. 152.) The court rejected this argument, explaining that even where an alleged misclassification in volves application of a uniform policy, individualized inquiry may be necessary “b ecause the policy may properly classify some employees as exempt but not others.” ( Id. at p. 153.) Although the employer “maintained uniform internal policies,” the “evidence showed that the manner in which those policies and standards were implemented as to each [putative class member] varied depending on multiple factors.” ( Id. at p. 154.) The court thus concluded substantial25 evidence supported the trial court’s dete rmination that common issues did not predominate. ( Ibid. )

We find this case to be more similar to Soderstedt than Ghazarayan . Although plaintiffs allege uniform policies may be us ed to prove their clai m that putative class members were denied duty-free meal/rest peri ods, there was substantial evidence that several of these policies were not in fact uniform or consistently applied. In Ghazarayan

, the record established, with apparently undisputed evidence, that the employer dictated how putative class members were to use th eir standby time. Here, the Gas Company disputes the uniformity and consistency of a pplication of the critical policies plaintiffs rely upon to support their claims. Indivi dualized evidence would be required to resolve simply the existence of these alleged uniform policies, and th e extent to which they were in fact applied.

Two cases decided after Brinker likewise provide an inst ructive contrast. In Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341 ( Wet Seal ), the appellate court affirmed a trial court order denying class ce rtification. The plaintiffs were sales employees at the defendant’s clothing stores. They alleged they were required to wear defendant’s merchandise, but were not reimbur sed for the merchandise they purchased to wear, and that they were not reimbursed for mileage for their work-related travel. ( Id. at p. 1350.) Plaintiffs’ legal theory was that the defendant’s unlawful practices were reflected in written company policies which app lied to all members of the putative class. ( Id. at p. 1346.) The trial court denied cer tification, concluding individual questions would predominate as the defendant’s co mpany policies did not provide a common method of classwide proof on ce ntral liability questions. ( Id. at p. 1353.) The Court of Appeal agreed. Although the plaintiffs purported to base their claims on the defendant’s comp any policies, the written policies di d not on their face support the plaintiffs’ claims. The dress code policy di d not require employees to wear defendant’s merchandise, and the plaintiffs’ other eviden ce—consisting mainly of declarations from putative class members—did not demonstrat e any common dress code practices. ( Wet Seal, supra, 210 Cal.App.4th at pp. 1356-1357.) Si milarly, the defendant’s written travel26 reimbursement policy did not support plainti ffs’ allegations, and pl aintiffs themselves categorized the policy in practice as “hit or miss.” ( Id. at p. 1357.) Thus, the Court of Appeal concluded the plaintiffs did not pro duce substantial eviden ce of a companywide policy which could be used to establish classwide liability. The written policies alone did

not constitute substantial evidence that defe ndant engaged in unlawf ul practices, and the plaintiffs’ other evidence rein forced the conclusion that liability would have to be decided on an individualized basis. ( Id. at pp. 1362, 1364, 1368.) The employer disputed that any unlawful policies exis ted, and the plaintiffs faile d to establish there was any classwide method of proof for reso lving that liability question. ( Id. at pp. 1362-1363.) In contrast, in Bradley, supra, 211 Cal.App.4th 1129, the appellate court applied

Brinker and reversed a trial court order denyi ng certification to a class of allegedly misclassified employees who were also denied meal and rest breaks. The court noted

there was undisputed evidence showing the defendant had “consistent companywide policies applicable to all employees regard ing work scheduling, payments, and work requirement.” ( Bradley, at p. 1147.) Irrespective of the merits of the misclassification claim, the court explained “[t]he critical fact is that the evid ence likely to be relied upon by the parties would be largely un iform throughout the class.” ( Ibid. ) With respect to the meal and rest break claims, the court noted the defendant did not present any evidence showing it had a formal or informal policy of permitting legally requi red breaks, that any

worker believed he or she was entitled to take legally required breaks, that some or all workers took the breaks, or evidence that its “meal or break policies (or the failure to institute such policies) were different with respect to each worker.” ( Id. at p. 1150.) The court thus concluded, “plaintiffs’ th eory of recovery is based on [the defendant’s] (uniform) lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily requi red rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof. Although an employer could pot entially defend these claims by arguing

that it did have an informal or unwritten meal or rest break policy, this defense is also a matter of common proof.” ( Bradley, supra, 211 Cal.App.4th at p. 1150.) The defendant27 argued the issue of which employees missed breaks, how many breaks were missed, and the reasons employees missed breaks wa s highly individualized. The court acknowledged this was true, but concluded that, under Brinker , “when an employer has not authorized and not provided legally requ ired meal and/or rest breaks, the employer

has violated the law and th e fact that an employee may have actually taken a break or was able to eat food during the wo rkday does not show that indi vidual issues will predominate in the litigation.” ( Bradley , at p. 1151.) Here, as in Wet Seal , plaintiffs have alleged they can prove their claims using evidence of companywid e policies, but the Gas Company disputes the uniformity of those policies, and plaintiffs have not esta blished the dispute ma y be resolved with common proof rather than individualized showings. And, in contrast to Bradley , there is no undisputed evidence show ing consistent companywide policies that uniformly restricted putative class members’ use of company vehicles for personal use or their movement during breaks.

We find no trial court abuse of discretion with respect to the meal/rest break claim.

B. Off-the-clock Claims: Donning/Doffi ng Uniforms and Computer Use Substantial evidence also suppo rted the trial court finding that individual questions would predominate in litigation of plaintiffs’ off-the-clock work claims. Plaintiffs alleged Gas Company policies required puta tive class members to be dressed in a

uniform or coveralls at the start of their sh ift, but they were prohibited from taking their work attire home, and were limited to wear ing work attire only in the performance of work, thus they were forced to spend uncompensated time before their shifts getting dressed in work attire. However, plaintiffs offered no evidence of a companywide policy prohibiting employees from getting dressed in work clothing on the clock at the beginning of their shifts. 11 Further, although plaintiffs of fered evidence that a collective

11 The one citation to the reco rd plaintiffs offer on appeal to support this point refers only to the declaration of Frias, in which he declared he was aware of Gas Company employees being disciplined for not being in a uni form or coveralls at the start of a shift. Aside from the evidentiary issu es surrounding this declarati on, even if admitted, the28 bargaining agreement provision indicated worker s were not to take coveralls home with them in most cases, the Gas Company offere d evidence indicating it had waived that provision, and it was not widely known with in the company. In addition, the Gas Company offered evidence that in practice employees were a llowed to take coveralls and uniforms home with them, and did so. Indeed, th e only evidence plain tiffs offered on this claim were their own declarations, the co llective bargaining agreement provision, and

Frias’s declaration. No subs tantial evidence point ed to a uniform, consistently applied companywide policy requiring employ ees to don and doff uniforms during uncompensated time, or proh ibiting class members from wear ing work attire to and from

their base. Similarly, no substantial evidence pointed to a uniformly a pplied, companywide policy requiring employees to boot up or shut down their mobile computers while they

were off the clock. Plaintiffs offered no ev idence of any policy relating to the booting up or shutting down of computers, and no evid ence that any employees were required by company policy or practice to engage in thes e activities in off-the-clo ck time. Even the named plaintiffs’ own declarations stated only that they were require d to engage in work activities before and after their shifts, without providing any specifics. To the extent the named plaintiffs were require d to perform off-the-clock wo rk, their evidence indicates only that their claims arose from the individua l actions of particular supervisors. As such, the trial court could reasonably concl ude based on the evidence that individual questions would predom inate in any litigation of these claims. ( Bradley, supra, 211 Cal.App.4th at p. 1156.)

statement did not provide substantial evid ence of a uniformly applied companywide policy prohibiting employees fro m donning uniforms or covera lls during paid time. The same is true of Frias’s other statements re garding the other challe nged policies in this case. Frias’s declaration at best provided only anecdotal evidence of discipline rather than evidence of uniformly a pplied companywide policies. In light of our conclusions above, we need not consider pl aintiffs’ argument that the trial court erred in sustaining objections to portions of the Frias declaration.29 The trial court did not abuse its discretion in denying cer tification of a class based on the off-the-clock claims. ( Brinker, supra, 53 Cal.4th at pp. 1051-1052.) III. Superiority and Ad equacy of Cl ass Counsel Plaintiffs also challenge the trial court’ s determination that a class action would not be a superior method of re solving this case. The cour t’s decision was based on its

conclusion that individu al questions would pr edominate in the litigation, and the claims brought on behalf of th e class would be “difficult if not impossible to manage.” We have affirmed the trial court’s conclusion as a proper exercise of its discretion. We similarly

find substantial evidence established class tr eatment was not superior in this action because individual questions would predominate, requiring numerous “mini-trials.” ( Soderstedt, supra, 197 Cal.App.4th at p. 157; Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1353.) In light of our conc lusions affirming the denial of certification of the class claims, we need not consider plai ntiffs’ argument that the trial court erred in finding cocounsel Fitzgerald inadequate as class counsel. ( Ali, at p. 1353.)

IV. The Trial Court Erred in Denying the PAGA Claim Plaintiffs argue the trial court erred in denying their representative PAGA claim. Plaintiffs assert the trial court improperly ap plied class action requirements to the claim, and alternatively adopt their arguments re garding the trial court’s conclusions on predominance. We agree that the trial court abused its discretion in applying class action requirements to the PAGA claim. Arias v. Superior Court (2009) 46 Cal. 4th 969, 984 ( Arias ), is the controlling decision. Under PAGA, “an ‘aggrieved empl oyee’ may bring a civ il action personally

and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (Lab. Code, § 2699, subd. (a).)” 12 ( Arias , at p. 980.) In Arias , the

12 Labor Code section 2699, subdivision (a ) provides: “Notwithstanding any other provision of law, any provision of this c ode that provides for a civil penalty to be assessed and collected by the Labor and Work force Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be re covered through a civil action brought by an30 plaintiff sought civil penalties under PAGA, and asserted UCL claims (Bus. & Prof. Code, § 17200 et seq.), for himself and other employees for alleged Labor Code violations. ( Id. at pp. 976, 981.) The trial court gr anted the defendants ’ motion to strike the representative causes of actio n on the ground that the plai ntiff failed to comply with pleading requirements for class actions. The Court of Appeal held the representative claims under the UCL were subject to clas s action requirements, but the PAGA claims were not. ( Ibid. ) In the California Supreme Court, the de fendants challenged the appellate court ruling on the PAGA claims, while the plain tiff challenged the court’s ruling as to the representative UCL claims. Our high court a ffirmed the appellate c ourt ruling. On the UCL claims, the court conclu ded Proposition 64 allowed priv ate plaintiffs to bring representative actions under th e UCL only if they comply w ith class action requirements

set forth in Code of Civil Procedure section 382. 13 ( Arias, supra, 46 Cal.4th at pp. 977- 978, 980.) However, our Supreme Court rejected the defendants’ argument that the plaintiff was also required to satisfy class action re quirements when seeking civil penalties on a representative basis under PAGA. The cour t considered and dism issed arguments that not requiring compliance with class action re quirements would lead to “absurd results,”

aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the proc edures specified in Section 2699.3.” Labor Code section 2699, subdivision (c) define s “aggrieved employee” as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.”

13 Code of Civil Procedure section 382 pr ovides: “If the consent of any one who should have been join ed as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complain t; and 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 c ourt, one or more may sue or defend for the benefit of all.”31 would conflict with the legislative intent of the act, or would violate the due process rights of defendant employers and nonparty aggrieved employees. ( Arias, supra, 46 Cal.4th at pp. 982-985.) The court conclude d the plaintiff was not required to satisfy

Code of Civil Procedure section 382 re quirements to pursue civil penalties on a representative basis under PAGA. While the Gas Company ackn owledges the holding of Arias , it contends the trial court could still deny plaintiffs’ PAGA claim on the ground that th e litigation would be unmanageable. However, the court’s findi ng of unmanageability was based entirely on the conclusion that plaintiffs had not satisfi ed the community interest prong for class action certification, specifically by faili ng to establish common questions would predominate in the litigation. Since, under Arias , a plaintiff need not even plead a representative PAGA claim in accordance with class action requirements, it seems anomalous to require that the plaintiff esta blish the community of interest class action requirement with respect to a PAGA claim, in the context of a class certification procedure. Indeed, the Gas Company ha s offered no authority suggesting such a procedure is authorized or appropriate. The authorities the Gas Company cites all predate Arias , they all concern representative clai ms under the UCL (prior to Proposition 64), and they do not support the company’s position. For example, in Bronco Wine Co. v. Fr ank A. Logoluso Farms (1989) 214 Cal.App.3d 699 ( Bronco Wine ), the plaintiff, a grape growe r, sued a winery operator, on a breach of contract theory. The plaintiff also sought res titution, on behalf of itself and other grape growers under contract with the defendant, as compensation for unfair business practices, such as wrongfully rej ecting grapes, applying quality standards unreasonably in order to pay less for grapes than a previously agreed upon price, and threatening to sue grow ers who complained. ( Id. at p. 715.) The trial court awarded restitution to several nonparty grape growers. The Court of Appeal concluded this was error because nonparty growers were not given notice of the proceedings or an opportunity to be hear d before judgment. ( Id. at pp. 718-719.) The procedure the trial court used to grant awards to certain nonpar ties raised “serious fundamental due process32 considerations.” ( Id. at p. 717.) The court noted that the determination of whether the challenged business practice was unfair was complex, and the potential amount of restitution per grower was signifi cant and not determined by an automatic calculation. ( Id. at p. 720.) The growers also had an alternative administrative remedy. ( Id. at pp. 720-721.) Although the court issued restitu tion awards to 27 no nparty grape growers, contracts of only 20 nonparty grape grower s were introduced into evidence. ( Id. at pp. 716, 718.) Disputes arose because the defend ant asserted 12 of the growers had already released their claims. ( Id. at p. 718.) Under those circ umstances, the court concluded the trial court abused its discretion in denying the defendant’s pretrial motion to strike claims asserted on behalf of nonparty growers or require that a class action procedure be utilized. ( Id. at pp. 715, 721.)

Bronco Wine does not mandate an outcome in this case. Here, there is a California Supreme Court case explicitly holding that an aggrieved employee need not meet class action requirements to bring a PAGA claim seeking civil pe nalties for himself and other aggrieved employees. 14 Arias considered, and rejected, claims that allowing PAGA claims without mandating class action requir ements would create due process problems, a primary concern of the court in Bronco Wine . Moreover, the court in Bronco Wine was concerned with the difficulty of making awards of res titution under the UCL. Under PAGA, a plaintiff ma y only pursue civil penalties on behalf of himself and other aggrieved employees. The amount of the pena lties are set forth in the statute. (Lab. Code, § 2699, subd. (f).) Unmanageability due to the difficulty of determining individualized restitution awards is not presen t in a PAGA claim, as it may have been in some representative UCL claims before Proposition 64.

14 Indeed, the Bronco Wine court expressed skepticism that it was “proper to maintain an individual, representative action for unfair competition outside the confines of a class action.” ( Bronco Wine, supra, 214 Cal.App.3d at p. 720.)33 The federal district court cases defe ndant relies upon similarly rejected representative UCL claims because of the problems inherent in determining restitution awards when the economic losses suffered by each nonparty varied significantly. (See,

e.g., Marshall v. Standard Insurance Company (2000) 214 F.Supp .2d 1062, 1070, 1072- 1073 [pursuant to motion to dismiss, dism issing representative UCL claim related to alleged bad faith handling of disability clai ms; amount of restitution for each nonparty could not be determined with straightforwar d calculation and woul d not be nominal or identical; allowing representative claim for injunctive relief]; Barnett v. Washington

Mutual Bank (N.D.Cal. Sept. 9, 2004, C 03-00753 CRB) 2004 U.S. Dist. Lexis 18491 [striking representative claim under UCL to the extent it sought restitution because amount of restitution per party was large a nd amounts of overtime were not recorded, making determination of amount of restitution complicated]; Nachum v. Allstate Insurance Company (C.D.Cal. July 22, 1997, CV 97- 4493) 1997 U.S. Dist. Lexis 12670 [dismissing UCL representa tive claim alleging bad faith in claims handling for earthquake property damage; c ourt could not award restitutio nary relief and provide due process without litigating individuali zed bad faith claims]; see also Lazar v. Trans Union

LLC (C.D.Cal. 2000) 195 F.R.D. 665, 673-674 [district court granted motion to strike representative UCL claim because range of possible damages was wide and plaintiff’s

circumstances were different from those of fellow consumers; court determined plaintiff’s circumstances were “ unusual” thus he was not a reas onable representative].) Likewise, South Bay Chevrolet v. General Motors Acceptance Corporation (1999) 72 Cal.App.4th 861 ( South Bay ), also concerned representative claims under the UCL, prior to the passage of Proposition 64. The pl aintiff, an automotive dealership, asserted an individual claim for unfair business practices , a representative claim on behalf of other California dealerships, and class action allegations. After unsuccessful summary judgment motions, the parties stipulated to the dismissal of the plaintiff’s class action allegations. ( Id. at pp. 874-875.) The matter then proc eeded to a court trial. At the close of the plaintiff’s case, the trial court gran ted a motion for judgment on the representative claim. The Court of Appeal found the lowe r court properly conclu ded the plaintiff did34 not meet its burden to establish other dealersh ips were “similarly si tuated as to their likelihood of deception,” or th at any other dealership was likely to be deceived by the defendant’s practices. ( Id. at p. 894.) Thus, the trial court “properly determined it could not make any determination that [d efendant] was liable statewide.” ( Id. at p. 895.) The appellate court noted the eviden tiary record demonstrated th ere were disparate ways in which the dealerships understood the defendan t’s practices, and based upon this record,

the trial court acted within its discretion in concluding there was an insufficient level of uniformity to allow repres entative treatment. ( Id. at p. 897.) Even assuming the South Bay court’s analysis is applicable to a PAGA claim, we

note a critical distinction between South Bay and this case. The trial court in South Bay dismissed the representative UCL claim only af ter the plaintiff’s presentation of evidence

at a bench trial revealed the absence of a st atewide claim. The plaintiff thus had the opportunity to prove there were similarly situated dealership s it could properly represent,

and it failed to do so. In th is case, there has been no such opportunity, and no analogous

trial court exercise of discretion based on an evidentiary hearing, or other means of addressing the plaintiff’s ability to prove an element of his or her case, such as a demurrer or motion for summary adjudication. A conclusion, made in the context of a class certification motion, that individual questions would predominate in companywide class litigation, thereby rendering class action treatment inappropriate, is not the same as a conclusion that the plaintiffs cannot esta blish there are other “aggrieved persons” they may properly represent in a PAGA claim. (See, e.g., Rix v. Lockheed Martin Corporation (S.D.Cal. Jan. 4, 2012, Civ. No. 09cv2063 MMA (NLS)) 2012 U.S. Dist. Lexis 653 [district court denied class certif ication because individual inquiries would predominate over common questi ons but allowed PAGA represen tative claim to proceed; court concluded it was premature to strike cl aim given the reasonable possibility plaintiff could ultimately seek to litigate a “manageable PAGA claim”; limiting subsequent discovery accordingly].)35 We further find persuasive the follo wing discussion from a recent case, Plaisted v. Dress Barn, Inc. (C.D.Cal. Sept. 20, 2012, No. 2: 12-CV-01679-ODW (SHx)) 2012 U.S.

Dist. Lexis 135599: “This Court adheres to the majority position allowing representative PAGA claims to proceed without class ce rtification under [Federal Rule of Civil Procedure] 23. The Court agrees that representative PAGA actions fundamentally differ from class actions insofar as PAGA’s ‘plain purpose is to protect the public interest throu gh a unique private enforcement process, not to allow a collection of individual plaintiffs to sue the same defendant in one consolidated action for the sa ke of convenience and efficiency.’ [Citation.] . . . .

“Dress Barn further contends that even if Plaisted’s PAGA claim does not automatically fail for want of Rule 23 certification, the PAGA claim should still be dismissed becaus e the individualized determinations required under PAGA would ma ke trying such a claim unmanageable. . . . “. . . Yet, all of the authorities Dress Barn cites in support of its position required indi vidualized restitution calculations under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200-17210. [Citations.] Unlike California’s UCL, PAGA does not provide for equitable restitutionary or injunctive relief; instead, plaintiffs bringing representative PAGA actions can recove r only statutory penalties in fixed amounts per violation. See Cal. Lab.Code § 2699(f). And unlike class or representative actions seeking dama ges or injunctive relief for injured employees, the purpose of PAGA ‘is to incentivize private parties to recover civil penalties for the government that otherwise may not have been assessed and collected by overburden ed state enforcem ent agencies.’ [Citation.] To hold that a PAGA acti on could not be maintained because the individual assessments regardi ng whether a violation had occurred would make the claim unmanageable at trial would obliterate this purpose, as every PAGA action in some way requires some individualized assessment regarding whether a Labo r Code violation has occurred. Further, the individualized assessment necessary in a PAGA action would come nowhere close to the individua lized and fact-intensive restitution calculations necessary under the UCL, and is in fact an inherent aspect of a PAGA claim.” (Fns. omitted.)

(See also Alcantar v. Hobart Service (C.D.Cal. Jan. 14, 2013, No. ED CV 11-1600 PSG (SPx)) 2013 U.S. Dist. Lexis 54 43 [despite denial of class cer tification, plaintiff allowed36 to pursue representative PAGA claim; rejecting argument that PAGA claim would require multiple min itrials]; see also Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 576, fn. 8 [unpublished fe deral decisions citable as persuasive authority.) The parties have not iden tified any California cases specifically considering whether the trial court may deny a repr esentative PAGA claim on the ground that individual questions would make the litigation unmanageable. But in this case, the trial court’s finding of unmanageab ility was based entirely on plai ntiffs’ failure to establish the community of interest prong necessary for class certification. Given the guidance

from Arias , we conclude the trial court abused its discretion in applying class action

certification standards to ev aluate the PAGA claim.

DISPOSITION The trial court order denying certification of class claims is affirmed. The order denying plaintiffs’ PAGA claim is reversed. The parties shall bear their own costs on appeal.

BIGELOW, P. J.

We concur:

RUBIN, J.

GRIMES, J.