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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, Kristen Marquis Fritz; Fitzgerald Lundberg 

& Romig, Ken M. Fitzgerald and Barbrae Lundberg for Plaintiffs and Appellants. 

 Paul Hastings, Paul Grossman, Paul W. Cane, Jr., Leslie L. Abbott, Eric Stevens; 

Young, Zinn & Bate, Linda Van Winkle Deacon and Harry A. Zinn for Defendant and 

Respondent. 

______________________________________ 
2

 Plaintiffs Eric Nelson, Juan Mejoredo, and Robert Dowling sought certification of 

a class action against Southern California 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 grounds that the plaintiffs failed to establish common questions would 

predominate in the action or that class treatment would be the superior means of 

resolving the litigation. We affirm the trial court order on class certification 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 PROCEDURAL 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, driving 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 failing to relieve class members of all duties 

during their meal and rest periods, and by exerting control over class members during 

their meal and rest periods, such that they were denied the 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 allegations, plaintiffs asserted seven causes of 

action in the operative second amended complaint: (1) failure to provide 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 worked (Wage Order No. 4; Lab. Code, §§ 200, 226, 226.7, 

500, 510, 1194, 1197, 1198); (3) failure to pay overtime 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 hours worked (Wage Order No. 4; Lab. Code, 

§§ 200, 226, 226.7, 500, 510, 1194, 1197, 1198); (5) failure to furnish accurate wage 

statements (Lab. Code, § 226); (6) failure to pay compensation upon discharge (Lab. 

Code, §§ 201-203); and (7) violations of Business and Professions Code section 17200 et 

seq. (UCL). Plaintiffs also asserted a claim for remedies under PAGA. 

 The Gas Company filed a motion for an order declaring the suit inappropriate for 

class treatment and denying representative status for the PAGA claim. Plaintiffs 

subsequently filed a motion for class certification. Plaintiffs sought certification of a 

class defined as: “All individuals who are currently employed, or formerly have been 

employed, as non-exempt Field Operations employees for Southern California Gas 

Company during the Class Period. Excluded from the Class 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 members 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 argued the Gas Company had formal policies 

that were applied to all field operations employees, and these policies established the Gas 

Company was not providing lawful meal and rest breaks 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 provided that company vehicles are “operated 

only in the performance of Company business by authorized employees who are 18 years 

of age or over.” In a section on work assignments, the manual indicated field employees 

are required to “retrieve and route their orders on or after the start of their shift. . . . [¶] 
4

. . . Employees are expected to be in their assigned work area unless otherwise approved 

by a supervisor. Travel between work areas is by the most reasonably 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 end 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 the job. . . . [¶] . . . Field employees are 

to avoid coincidental meetings of more than two persons or more than one crew. 

Prearranged meetings are prohibited.” 

 In a section of the manual titled “Conduct,” 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 prohibited from consuming alcoholic beverages 

during working hours, “whether on or off of Company premises.” 

Plaintiffs also offered subsequently 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 could be worn to and from work, and stated 

employees were allowed to take uniforms or coveralls home if required to report to work 

with a uniform or coveralls. Plaintiffs’ evidence also included copies of a provision from 

the collective bargaining agreement stating certain employees would be provided 

coveralls, and employees would not take the coveralls home at night except in specified 

circumstances. 

Plaintiffs attached a separate “gas standard” for crew operations which set forth 

rest period criteria. The standard allowed for crew operations employees to take rest 

 

2 This section also included guidelines for meal periods when an employee works 

more than 10 hours in a shift. 
5

periods or coffee breaks, with the “Lead Construction 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 the stops are of short duration or, [¶] . . . 

When working within a reasonable walking distance of a restaurant or store. One or two 

crew members at a time may leave the job to obtain coffee or soft drinks. The crew truck 

is not left unattended nor used for transportation 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 Plaintiffs and Arturo Frias 

The named plaintiffs declared Gas Company 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 Company policy required that if field operations 

employees are contacted, including during a meal or rest break, the employee is required 

to acknowledge the contact to determine whether it is an emergency. Plaintiffs 

additionally declared Gas Company policy required field operations employees to be in 

their assigned work area unless they had supervisor approval to be out of the area; they 

were required to always be “in route” during their work shifts; they were required to 

drive a company vehicle but were not allowed 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 transportation during a lunch break. Plaintiffs 

declared Gas Company policy prohibited field operations employees from consuming 

alcoholic beverages during working hours, and two of the named plaintiffs also declared 
6

that under Gas Company policy they were not allowed to prepare coffee or other 

beverages on the job site. According to plaintiffs, they were prohibited from taking their 

coveralls home, but were also required to wear them only when working. They 

additionally declared they were required to perform work-related duties before and after 

their scheduled shifts, and they were not paid for the time. 

 Plaintiffs’ evidence included the declaration of a union representative, Arturo 

Frias. Frias declared, based on his personal knowledge and disciplinary records he had 

seen, that he was aware Gas Company employees 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 periods, 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 depositions of 13 Gas Company supervisors. 

The supervisors all testified that one of their responsibilities was to enforce company 

policies, or to review the company’s policies with the employees they supervised to 

ensure compliance. Several supervisors testified that the employees they supervised used 

company vehicles equipped with a communication device or radio that allowed 

employees to be contacted. Several confirmed 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 excerpts, the supervisors testified that employees had to be 

reachable at all times while “on duty,” or available to be contacted by some method in 

case of an emergency. One supervisor testified 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 different.” 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, the 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 “in 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 employee could be disciplined for not staying in 

route. 

Deposition Testimony of Gas Company Person Most Knowledgeable Witness 

Plaintiffs further supported their motion with excerpts from the deposition of a 

person most knowledgeable (PMK) witness for 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 order.” Ayala indicated there was no written policy 

defining in or out of route, or any set distance 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 treatment was inappropriate because some of 

the plaintiffs’ theories were legally untenable, and their claims would require 

individualized proof. 
8

Putative Class Member Declarations 

To support the motion seeking an order declaring 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 clocking in for a shift, or required to change out 

of coveralls at the base after clocking out for 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 required 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 period 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 assess 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 being 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 percent of the days they worked. However, others reported 

being able to take duty-free meal periods 100 percent of the days they worked, and they 

were able to leave the job site 100 percent of the time. 

The Gas Company’s declarations also included longer prose-style declarations 

addressing meal and rest periods. These declarations contained text 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. The 
9

declarations included language indicating how often the employee had the opportunity to 

take an “off-duty meal period of at least 30 minutes,” whether the employee always 

decided when and where to take meal and rest periods, and whether the employee 

understood the Gas Company expected the employee to accurately record meal period 

start and stop times. Some declarants recounted receiving premium pay on occasions 

when they were unable to start a meal period within 5 hours of starting work. One 

individualized paragraph described 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 long as I lock it.” Some employees stated 

they brought lunch from home and sat in the truck or in a park to take the meal break. 

Others described buying a meal and taking a meal break outside of the 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 described a process by which the employee 

could keep track of an interrupted meal period so as to be paid for the time. Several 

included a paragraph indicating that when the declarant received a message during a meal 

period to respond to an emergency call, he or she interrupted the 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 the dispatcher they were on 

lunch and they would not be disturbed.3 Some included a paragraph stating they would 

send a message to the dispatcher notifying him or her that they were starting a meal 

period so they would not be contacted during that time. A few declarants 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 rarely interrupted during their meal breaks. 

Others were silent on how often 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. Many 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 before or after their shift. With respect to 

coveralls, many declared they did not always wear coveralls and changed 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 plaintiffs 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 the twelve declared that when they called 

employees, they always asked if they were available, 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 employee 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 emergency, 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 customary practices at their bases regarding 

the definition of “in route,” the personal use of company vehicles during meal and rest 

breaks, the prohibition on preparing coffee, and the prohibition on meetings of two or 

more employees. Some supervisors interpreted “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 “reasonable 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 spend their time.” 

All of the supervisors declared employees “routinely” used company vehicles 

between work orders to drive to locations such as restaurants, 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 declared 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 “prefer to stop at a local coffee shop or bring beverages 

from home,” or in some cases took coffee provided at the base. All of the supervisors 

acknowledged the company’s prohibition on prearranged or coincidental meetings. 

All but one of the supervisors declared the requirement 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 uniforms 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 employees often returned to the 

base to shower and change out of their work clothes while on the clock, assuming they 

were able to finish in the field 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 coffee so long as employees did 

not use a “blow torch or other device to heat their beverage.” 
12

shift; all but one further declared employees were not required to omit the time it takes to 

shut down the computer from 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 uninterrupted 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 certain geographic area. And they are expected 

to stay in that geographic area and take their meals within a reasonable proximity of those 

orders.” The Gas Company also included excerpts from several supervisor depositions, 

in which the supervisors testified they were unaware of the collective bargaining 

provision prohibiting employees from taking coveralls home. 

Trial Court Ruling 

The trial court denied the motion for class certification. Although it concluded 

plaintiffs had established the proposed class was ascertainable and sufficiently numerous, 

and that the named plaintiffs would be adequate representatives, the court determined 

common questions would not predominate in the litigation of the class claims. The court 

found the evidence demonstrated the Gas Company’s policy was for field employees to 

receive messages, even during breaks. However, the court explained there was no set 

time in which employees were required to respond, and some employees did not respond 

during their meal breaks. The court therefore concluded “whether a class member 

actually responded to a message during their meal break is a question that cannot be 

determined on a classwide basis because of variations in practice.” The court dismissed 

plaintiffs’ arguments regarding the prohibition on alcohol consumption and preparation 

of hot beverages as irrelevant. 

As to the “in route” restriction, the court concluded the Gas Company policy 

involved no specific geographic limitation and each supervisor was able to determine 

what was reasonable. As a result, the court concluded “[w]hether the requirement that 

the class members stay ‘en route’ amounts to such a restriction that Defendant remains in 
13

control of their meal breaks, cannot be determined for the entire class and would require 

individualized analysis. In other words, there are differences in how the rule is applied 

by supervisors that would create individualized questions for putative class members.” 

The court determined plaintiffs did not provide evidence that a rule against 

conducting personal business during meal breaks was uniformly applied to the class. 

Similarly, the court concluded the plaintiffs 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 provided 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 respond to; the application of a rule against 

personal business; and the application of the rule against 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 members 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 turning off computers was required to be 

performed off the clock. 

The court found individual questions were likely to arise in the litigation rather 

than common ones, thus class treatment would not be superior or substantially beneficial 

to the litigants or the court. The court further held plaintiffs could not bring their PAGA 

claim as a representative action because individual issues would predominate and a 

representative action would not be manageable. The court sustained several evidentiary 

objections to the Frias declaration, and also concluded plaintiffs’ cocounsel Ken M. 

Fitzgerald was not qualified 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 prepared 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 California Supreme Court recently considered 

issues surrounding the certification of class action claims for meal and rest break 

violations in Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004 

(Brinker). The court summarized the general requirements for certification of a class: 

“The party advocating class treatment must demonstrate the existence of an ascertainable 

and sufficiently numerous class, a well-defined community of interest, and substantial 

benefits from certification that render proceeding as a class superior to the alternatives. 

(Code Civ. Proc., § 382; [citations].) ‘In turn, the “community of interest requirement 

embodies three factors: (1) predominant common questions of law or fact; (2) class 

representatives with claims or defenses typical of the class; and (3) class representatives 

who can adequately represent the class.” ’ [Citation.]” (Id. at p. 1021.) 

As in Brinker, the disputed issue in this case is whether individual or common 

questions would predominate in any classwide litigation. The Brinker court explained 

“[t]he ‘ultimate question’ the element of predominance presents is whether ‘the issues 

which may be jointly tried, when compared with those requiring separate adjudication, 

are so numerous or substantial that the maintenance of a class action would be 

advantageous to the judicial process and to the litigants.’ [Citations.] The answer hinges

on ‘whether the theory of recovery advanced by the proponents of certification is, as an 

analytical matter, likely to prove amenable to class treatment.’ [Citation.] A court must 

examine the allegations of the complaint and supporting declarations [citation] and 

consider whether the legal and factual issues they present are such that their resolution in 

a single class proceeding would be both desirable and feasible. ‘As a general rule if the 

defendant’s liability can be determined by facts common to all members of the class, a 

class will be certified even if the members must individually prove their damages.’ 

[Citations.]” (Brinker, supra, 53 Cal.4th at pp. 1021-1022, 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 appeal, 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 discretion in granting or 

denying certification.” [Citation.] A certification order generally will not be disturbed 

unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or 

(3) it rests on erroneous legal assumptions. [Citations.]’ [Citations.] 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.4th 319, 328-329 (Sav-On).) 

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

Plaintiffs contend the trial court erred in concluding individual questions would 

predominate in the litigation. Specifically, plaintiffs argue the evidence showed specific 

Gas Company policies were applicable to all putative class members. Based on those 

policies, plaintiffs assert the Gas Company failed to provide class members with legally 

compliant meal and rest breaks, and caused employees to work off the clock. We 

separately consider the meal/rest break claim and the off-the-clock claim.7

 

7 The trial court did not separately 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 meal 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 legal principles applicable to plaintiffs’ 

claims. Under Wage Order No. 4, “No 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 ‘on 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 number 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.App.4th 1129, 1149 

(Bradley).) 

Plaintiffs’ legal theory hinges 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 the “substantial limitations” placed on the 

plaintiff police officers during their noncompensated meal periods “converted that time 

into hours worked.” (Id. at p. 409.) The court adopted a two-step analysis that 

considered “whether the restrictions on off-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 pay employees for all hours worked, and the 

IWC wage orders largely define “hours worked” as “the time during which an employee 

is subject to the control of an employer, and includes all the time the 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 definition of hours worked, with exception 

of two which include additional language].) 
17

since applied a similar analysis to workers 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 employer’s shuttle bus taking them to the fields 

was compensable. (Morillion, supra, 22 Cal.4th at p. 595.) During 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 workers 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 employees, rather than the mere fact that the 

employer requires the employees’ activity, is determinative . . . . [¶] . . . [¶] . . . by 

requiring employees to take certain transportation to a work site, employers thereby 

subject those employees to its control by determining when, where, and how they are to 

travel. Under the definition of ‘hours worked,’ 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 recovery vessels; standby time 

during two-week work periods]; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 

Cal.App.4th 1524, 1535 (Ghazaryan) [describing multifactor test 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 (DLSE) 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 concluded 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 restrains an employee from leaving the work 

place during his or her lunch hour and thus prevents the employee from using the time 
18

effectively for his or her own purposes, that employee remains subject to the employer’s 

control. According to [the definition of hours worked], that employee must be paid.” 

(Id. at p. 975; see Morillion, supra, 22 Cal.4th at p. 583.) 

A 1992 DLSE opinion letter specifically addresses the issue of whether an 

employee who is required to wear a pager during a meal period is entitled to 

compensation for that meal period.9 The DLSE opinion letter noted the analysis of 

Madera “is not so responsive to situations involving 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 DLSE then articulated the following policy: 

“If the employee is simply required to wear 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 other condition is put upon the 

employee’s conduct during the meal period. If, on the other hand, the employer requires 

the employee to not only wear the pager or listen for the in-house paging system, but also 

to remain within a certain distance of a telephone or otherwise limits the employee’s 

activities, such control would require that all of the meal period time be compensated. [¶] 

So long as the employee who is simply required 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 responds, 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 employee 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 controlling upon the courts but “ ‘ “ ‘ “constitute a 

body of experience and informed 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, relinquishes 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 never relieved of all duties during breaks, even if they never 

were called upon to perform any 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 putative class members on break periods, such that 

the breaks were transformed into “on-duty” periods. 

The Gas Company argues there is no evidence of a uniform companywide policy 

regarding putative class members’ conduct except that they must respond to certain rare 

emergency calls, and that policy alone is an insufficient basis 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 determination of what those limitations were, or how 

restrictive they were. To the extent there were other companywide policies, the Gas 

Company contends plaintiffs’ theories based on these restrictions cannot support liability. 

The issue before the trial court, and before us, is class certification only. “ ‘The 

certification question is “essentially a procedural 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 element, the trial court’s task was to determine “ ‘whether 

the theory of recovery advanced by the proponents of certification is, as an analytical 
20

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 whether plaintiffs presented substantial 

evidence of a systematic company policy or policies that allegedly rendered break periods 

compensable as hours worked. (See Brinker, supra, 53 Cal.4th at p. 1051 [class 

treatment inappropriate where plaintiff did not present substantial evidence of systematic 

company policy to require off-the-clock work].) Plaintiffs allege the failure to relieve of 

duties is demonstrated by several of the Gas Company’s companywide policies that are 

applicable to all putative class members. But the trial court concluded the evidence did 

not demonstrate these policies were in fact uniformly applied to all putative class 

members, thus requiring individualized questions 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 ‘ “even 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 consent 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 class 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 applied policy, restricting 

employees from conducting personal activities during their meal and rest breaks. 

Initially, we note there was no evidence that Gas Company had any policy, 

whether formal or informal, explicitly prohibiting employees from conducting personal 

business during meal breaks. Indeed, plaintiffs’ evidence included deposition testimony 

from a Gas Company PMK witness who testified that field operations employees are 

allowed to conduct personal business during their breaks. Even the named plaintiffs did 

not declare they were explicitly prohibited from conducting personal business during 

breaks. However, plaintiffs alleged a written 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 personal use of company vehicles, there was substantial 

evidence before the trial court indicating this was not a uniform prohibition consistently 

applied across the company disallowing personal 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 and 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 an 
22

alleged restriction on conducting personal business during breaks, such that it would 

be amenable to a common method of proof. (Sav-On, supra, 34 Cal.4th at p. 328 

[“ ‘[W]here a certification order turns on inferences to be drawn from the facts, 

“ ‘the reviewing court has no authority to substitute its decision for that of the trial 

court.’ ” ’ ”].) 

Similarly, there was evidence establishing 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 variations among supervisors as to their interpretation of the 

requirement. While some supervisors declared 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 told employees they could drive even farther 

afield if that is how they wished 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 there substantial evidence to support the trial 

court’s finding that plaintiffs did not make a factual showing that the policies they alleged 

could be established by common evidence? Given that plaintiffs’ theory of liability 

depends on the level of restriction and control exercised over putative class members 

during their meal breaks, substantial evidence supported the trial court’s determination 

that individual questions would predominate on the issue of whether the prohibition on 

personal use of company vehicles applied during meal breaks, and the “in route” 

requirement, constituted a level of control that turned the breaks into compensable time. 

Plaintiffs alleged other Gas Company policies demonstrated it exerted control over 

putative class members during their meal breaks, and that these were also companywide 

policies. However, we need not consider each policy individually. Plaintiffs’ theory of 

liability is that the Gas Company did not provide putative class members duty-free 

meal/rest periods because it did not relinquish control over them. The legal authorities 

upon which plaintiffs rely indicate the central issues are the level of control, and whether 
23

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 compensable considered 

factors such as excessive geographical restrictions 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 deciding 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 activities is a critical factor. (Seymore, at p. 374; Gomez, at 

pp. 523-524.) 

Here, there was substantial evidence the Gas Company did not have a 

companywide policy consistently applied to putative class members relating to the 

personal use of company vehicles, or uniform geographic restrictions, that directly or 

indirectly limited field operations 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 allegation to plaintiffs’ theory of liability, the trial court could 

reasonably conclude individual questions would predominate in any litigation of their 

claims, even if there was also evidence of some companywide policies governing 

employee availability for emergencies or restraints 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 driver sought certification of a 

class action on behalf of similarly situated drivers. The action alleged the employer 

violated wage and hour laws by failing to compensate drivers for on-call time between 

assignments. The Court of Appeal concluded that on the community of interest factor, 

the trial court erred in denying certification because it incorrectly focused on the 
24

difficulty of evaluating the validity of the employer’s compensation policy in light of 

variations in how drivers spent their on-call time, rather than on the 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 employer 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’ conduct and activities during the on-call periods. 

The limitations described in the handbook applied “across the board” to all drivers who 

had on-call time. (Id. at p. 1536.) Although the employer offered evidence suggesting 

some drivers used their on-call time for their own purposes, the court concluded this 

evidence did not change the fundamental legal question presented by the suit. The court 

explained: “Although individual 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 question to be resolved is not an individual one. To the 

contrary, the common legal question remains the overall impact of [the employer’s] 

policies on its drivers, not whether any one driver, through the incidental convenience of 

having a home or gym nearby to spend his or her gap time, successfully finds a way to 

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

In Soderstedt v. CBIZ Southern 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 their claims were subject to common proof 

because the classification question 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 involves application of a uniform policy, 

individualized inquiry may be necessary “because 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 substantial 
25

evidence supported the trial court’s determination 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 used to prove their claim that putative class 

members were denied duty-free meal/rest periods, 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 their standby time. Here, the Gas Company 

disputes the uniformity and consistency of application of the critical policies plaintiffs 

rely upon to support their claims. Individualized evidence would be required to resolve 

simply the existence of these alleged uniform policies, and the extent to which they were 

in fact applied. 

Two cases decided after Brinker likewise provide an instructive 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 certification. The plaintiffs were sales 

employees at the defendant’s clothing stores. They alleged they were required to wear 

defendant’s merchandise, but were not reimbursed 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 applied to all members of the putative class. 

(Id. at p. 1346.) The trial court denied certification, concluding individual questions 

would predominate as the defendant’s company policies did not provide a common 

method of classwide proof on central liability questions. (Id. at p. 1353.) 

The Court of Appeal agreed. Although the plaintiffs purported to base their claims 

on the defendant’s company policies, the written policies did not on their face support the 

plaintiffs’ claims. The dress code policy did not require employees to wear defendant’s 

merchandise, and the plaintiffs’ other evidence—consisting mainly of declarations from 

putative class members—did not demonstrate any common dress code practices. (Wet 

Seal, supra, 210 Cal.App.4th at pp. 1356-1357.) Similarly, the defendant’s written travel 
26

reimbursement policy did not support plaintiffs’ allegations, and plaintiffs themselves 

categorized the policy in practice as “hit or miss.” (Id. at p. 1357.) Thus, the Court of 

Appeal concluded the plaintiffs did not produce substantial evidence of a companywide 

policy which could be used to establish classwide liability. The written policies alone did 

not constitute substantial evidence that defendant engaged in unlawful practices, and the 

plaintiffs’ other evidence reinforced 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 existed, and the plaintiffs failed to establish there was any 

classwide method of proof for resolving 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 denying 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 regarding 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 evidence likely to be relied upon 

by the parties would be largely uniform 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 required 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’ theory 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 required 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 potentially 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 defendant 
27

argued the issue of which employees missed breaks, how many breaks were missed, and 

the reasons employees missed breaks was highly individualized. The court 

acknowledged this was true, but concluded that, under Brinker, “when an employer has 

not authorized and not provided legally required meal and/or rest breaks, the employer 

has violated the law and the fact that an employee may have actually taken a break or was 

able to eat food during the workday does not show that individual 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 companywide policies, but the Gas Company disputes the uniformity of 

those policies, and plaintiffs have not established the dispute may be resolved with 

common proof rather than individualized showings. And, in contrast to Bradley, there is 

no undisputed evidence showing 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/Doffing Uniforms and Computer Use

Substantial evidence also supported the trial court finding that individual questions 

would predominate in litigation of plaintiffs’ off-the-clock work claims. Plaintiffs 

alleged Gas Company policies required putative class members to be dressed in a 

uniform or coveralls at the start of their shift, but they were prohibited from taking their 

work attire home, and were limited to wearing 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 offered evidence that a collective 

 

11 The one citation to the record 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 uniform or coveralls at the start of a shift. 

Aside from the evidentiary issues surrounding this declaration, even if admitted, the 
28

bargaining agreement provision indicated workers were not to take coveralls home with 

them in most cases, the Gas Company offered evidence indicating it had waived that 

provision, and it was not widely known within the company. In addition, the Gas 

Company offered evidence that in practice employees were allowed to take coveralls and 

uniforms home with them, and did so. Indeed, the only evidence plaintiffs offered on this 

claim were their own declarations, the collective bargaining agreement provision, and 

Frias’s declaration. No substantial evidence pointed to a uniform, consistently applied 

companywide policy requiring employees to don and doff uniforms during 

uncompensated time, or prohibiting class members from wearing work attire to and from 

their base. 

Similarly, no substantial evidence pointed to a uniformly applied, companywide 

policy requiring employees to boot up or shut down their mobile computers while they 

were off the clock. Plaintiffs offered no evidence of any policy relating to the booting up 

or shutting down of computers, and no evidence that any employees were required by 

company policy or practice to engage in these activities in off-the-clock time. Even the 

named plaintiffs’ own declarations stated only that they were required to engage in work 

activities before and after their shifts, without providing any specifics. To the extent the 

named plaintiffs were required to perform off-the-clock work, their evidence indicates 

only that their claims arose from the individual actions of particular supervisors. As 

such, the trial court could reasonably conclude based on the evidence that individual 

questions would predominate in any litigation of these claims. (Bradley, supra, 211 

Cal.App.4th at p. 1156.) 

 

statement did not provide substantial evidence of a uniformly applied companywide 

policy prohibiting employees from donning uniforms or coveralls during paid time. The 

same is true of Frias’s other statements regarding the other challenged policies in this 

case. Frias’s declaration at best provided only anecdotal evidence of discipline rather 

than evidence of uniformly applied companywide policies. In light of our conclusions 

above, we need not consider plaintiffs’ 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 certification of a class based 

on the off-the-clock claims. (Brinker, supra, 53 Cal.4th at pp. 1051-1052.)

III. Superiority and Adequacy of Class Counsel 

Plaintiffs also challenge the trial court’s determination that a class action would 

not be a superior method of resolving this case. The court’s decision was based on its 

conclusion that individual questions would predominate in the litigation, and the claims 

brought on behalf of the 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 treatment 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 conclusions affirming the denial of certification 

of the class claims, we need not consider plaintiffs’ 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 applied class action requirements to the claim, 

and alternatively adopt their arguments regarding 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 employee’ may bring a civil 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 code that provides for a civil penalty to be 

assessed and collected by the Labor and Workforce Development Agency or any of its 

departments, divisions, commissions, boards, agencies, or employees, for a violation of 

this code, may, as an alternative, be recovered through a civil action brought by an 
30

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 granted the defendants’ motion to strike 

the representative causes of action on the ground that the plaintiff failed to comply with 

pleading requirements for class actions. The Court of Appeal held the representative 

claims under the UCL were subject to class action requirements, but the PAGA claims 

were not. (Ibid.) 

In the California Supreme Court, the defendants challenged the appellate court 

ruling on the PAGA claims, while the plaintiff challenged the court’s ruling as to the 

representative UCL claims. Our high court affirmed the appellate court ruling. On the 

UCL claims, the court concluded Proposition 64 allowed private plaintiffs to bring 

representative actions under the UCL only if they comply with 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 requirements when seeking civil penalties on a 

representative basis under PAGA. The court considered and dismissed arguments that 

not requiring compliance with class action requirements would lead to “absurd results,” 

 

aggrieved employee on behalf of himself or herself and other current or former 

employees pursuant to the procedures specified in Section 2699.3.” Labor Code section 

2699, subdivision (c) defines “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 provides: “If the consent of any one who 

should have been joined as plaintiff cannot be obtained, he may be made a defendant, the 

reason thereof being stated in the complaint; 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 court, 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 concluded the plaintiff was not required to satisfy 

Code of Civil Procedure section 382 requirements to pursue civil penalties on a 

representative basis under PAGA. 

While the Gas Company acknowledges the holding of Arias, it contends the trial 

court could still deny plaintiffs’ PAGA claim on the ground that the litigation would be 

unmanageable. However, the court’s finding of unmanageability was based entirely on 

the conclusion that plaintiffs had not satisfied the community interest prong for class 

action certification, specifically by failing 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 establish 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 has offered no authority suggesting such a 

procedure is authorized or appropriate. The authorities the Gas Company cites all predate Arias, they all concern representative claims under the UCL (prior to Proposition 

64), and they do not support the company’s position. 

For example, in Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 

Cal.App.3d 699 (Bronco Wine), the plaintiff, a grape grower, sued a winery operator, on 

a breach of contract theory. The plaintiff also sought restitution, on behalf of itself and 

other grape growers under contract with the defendant, as compensation for unfair 

business practices, such as wrongfully rejecting grapes, applying quality standards 

unreasonably in order to pay less for grapes than a previously agreed upon price, and 

threatening to sue growers 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 heard before judgment. (Id. at pp. 718-719.) The procedure the trial 

court used to grant awards to certain nonparties raised “serious fundamental due process 
32

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 significant 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 restitution awards to 27 nonparty grape growers, 

contracts of only 20 nonparty grape growers were introduced into evidence. (Id. at pp. 

716, 718.) Disputes arose because the defendant asserted 12 of the growers had already 

released their claims. (Id. at p. 718.) Under those circumstances, 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 penalties for himself and other 

aggrieved employees.14 Arias considered, and rejected, claims that allowing PAGA 

claims without mandating class action requirements 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 restitution under the UCL. Under 

PAGA, a plaintiff may only pursue civil penalties on behalf of himself and other 

aggrieved employees. The amount of the penalties are set forth in the statute. (Lab. 

Code, § 2699, subd. (f).) Unmanageability due to the difficulty of determining 

individualized restitution awards is not present 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 defendant 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, dismissing representative UCL claim related to 

alleged bad faith handling of disability claims; amount of restitution for each nonparty 

could not be determined with straightforward calculation and would 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 and 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 representative claim alleging bad faith in claims handling for 

earthquake property damage; court could not award restitutionary relief and provide due 

process without litigating individualized 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 reasonable 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 plaintiff, 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 proceeded to a court trial. At the close 

of the plaintiff’s case, the trial court granted a motion for judgment on the representative 

claim. The Court of Appeal found the lower court properly concluded the plaintiff did 
34

not meet its burden to establish other dealerships were “similarly situated as to their 

likelihood of deception,” or that 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 [defendant] was liable statewide.” (Id. at p. 895.) The 

appellate court noted the evidentiary record demonstrated there were disparate ways in 

which the dealerships understood the defendant’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 representative 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 after the plaintiff’s presentation of evidence 

at a bench trial revealed the absence of a statewide claim. The plaintiff thus had the 

opportunity to prove there were similarly situated dealerships it could properly represent, 

and it failed to do so. In this 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 establish 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 certification because individual inquiries would 

predominate over common questions but allowed PAGA representative claim to proceed; 

court concluded it was premature to strike claim given the reasonable possibility plaintiff 

could ultimately seek to litigate a “manageable PAGA claim”; limiting subsequent 

discovery accordingly].) 
35

We further find persuasive the following 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 certification 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 through a unique private enforcement process, 

not to allow a collection of individual plaintiffs to sue the same defendant 

in one consolidated action for the sake 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 because the individualized determinations 

required under PAGA would make trying such a claim unmanageable. . . . 

“. . . Yet, all of the authorities Dress Barn cites in support of its 

position required individualized 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 recover only statutory penalties in fixed 

amounts per violation. See Cal. Lab.Code § 2699(f). And unlike class or 

representative actions seeking damages 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 overburdened state enforcement agencies.’ 

[Citation.] To hold that a PAGA action could not be maintained because 

the individual assessments regarding 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 Labor Code violation has occurred. 

Further, the individualized assessment necessary in a PAGA action would 

come nowhere close to the individualized 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 5443 [despite denial of class certification, plaintiff allowed 
36

to pursue representative PAGA claim; rejecting argument that PAGA claim would 

require multiple minitrials]; see also Aleman v. AirTouch Cellular (2012) 209 

Cal.App.4th 556, 576, fn. 8 [unpublished federal decisions citable as persuasive 

authority.) 

The parties have not identified any California cases specifically considering 

whether the trial court may deny a representative PAGA claim on the ground that 

individual questions would make the litigation unmanageable. But in this case, the trial 

court’s finding of unmanageability was based entirely on plaintiffs’ 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 evaluate 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.