Filed 6/30/14

IN THE SUPREME COURT OF CALIFORNIA

MARIA AYALA et al., )

)

Plaintiffs and Appellants, )

) S206874

v. )

) Ct.App. 2/4 B235484

ANTELOPE VALLEY NEWSPAPERS, )

INC., ) Los Angeles County

) Super. Ct. No. BC403405

Defendant and Respondent. )

____________________________________)

Antelope Valley Newspapers, Inc. (Antelope Valley) is the publisher of the 

Antelope Valley Press, a daily newspaper. To deliver the paper to its subscribers, 

Antelope Valley contracts with individual carriers. Four carriers, Maria Ayala, 

Josefina Briseño, Rosa Duran, and Osman Nuñez, contend Antelope Valley 

illegally treats them as independent contractors, rather than employees, and 

thereby deprives them of a host of wage and hour protections to which they are 

legally entitled.

The merits of the complaint are not before us. The sole question is whether 

this case can proceed as a class action. The trial court concluded the case could 

not, holding that on the critical question whether Ayala and others were 

employees, plaintiffs had not shown common questions predominate; to determine

employee status, in the trial court‘s view, would necessitate numerous 

unmanageable individual inquiries into the extent to which each carrier was 
2

afforded discretion in his or her work. The Court of Appeal disagreed in part, 

holding that the trial court had misunderstood the nature of the inquiries called for, 

and remanded for reconsideration of the class certification motion as to five of the 

complaint‘s claims.

We affirm. Whether a common law employer-employee relationship exists 

turns foremost on the degree of a hirer‘s right to control how the end result is 

achieved. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 

48 Cal.3d 341, 350 (Borello).) In turn, whether the hirer‘s right to control can be 

shown on a classwide basis will depend on the extent to which individual 

variations in the hirer‘s rights vis-à-vis each putative class member exist, and 

whether such variations, if any, are manageable. Because the trial court 

principally rejected certification based not on differences in Antelope Valley‘s 

right to exercise control, but on variations in how that right was exercised, its

decision cannot stand.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Antelope Valley circulates the Antelope Valley Press daily to 

subscribers throughout Los Angeles and Kern Counties. To distribute the paper, 

Antelope Valley operates distribution facilities in both counties and contracts with 

individual carriers using a preprinted standard form contract. Named plaintiffs 

Maria Ayala, Josefina Briseño, Rosa Duran, and Osman Nuñez (collectively 

Ayala) are or were newspaper carriers for Antelope Valley.

In December 2008, Ayala sued on behalf of a putative class of Antelope 

Valley carriers. The complaint contends that Antelope Valley treats its carriers as 

independent contractors when, as a matter of law, they are employees. 

Consequently, Antelope Valley denies its carriers various wage and hour 

protections to which they are entitled. The complaint alleges unpaid overtime, 

unlawful deductions, failure to provide breaks, and failure to reimburse for 
3

business expenses, among other statutory and wage order violations (Lab. Code, 

§§ 221, 223, 226, 226.3, 226.7, 512, 1174, 1194, 2802; Industrial Welf. Com. 

wage order No. 1-2001, subds. 3, 7–9, 11–12 (IWC wage order No. 1-2001) (Cal. 

Code Regs., tit. 8, § 11010)), as well as unfair competition based on these

violations (Bus. & Prof. Code, § 17200).

Ayala sought class certification. She contended the central question in 

establishing liability was whether carriers are employees, and that this question 

could be resolved through common proof, including but not limited to the contents 

of the standard contract entered into between Antelope Valley and its carriers. 

Antelope Valley opposed certification. Because of alleged individual variations in 

how carriers performed their work, it disagreed that the question of employee 

status could be resolved on a common basis. Antelope Valley further argued that 

even if the carriers were employees, some of the causes of action presented 

additional unmanageable individual issues that should nevertheless preclude 

certification.

The trial court denied class certification. It concluded common issues did 

not predominate because resolving the carriers‘ employee status would require 

―heavily individualized inquiries‖ into Antelope Valley‘s control over the carriers‘ 

work. Moreover, the claims for overtime and for meal and rest breaks would 

require additional claim-specific individualized inquiries. Because individual 

issues predominated, class resolution of the claims was not superior to individual 

lawsuits by each carrier.

A unanimous Court of Appeal affirmed in part and reversed in part. It 

agreed with the trial court that Ayala had not shown how her overtime, meal 

break, and rest break claims could be managed on a classwide basis. As for the 

remaining claims, however, it disagreed that proof of employee status would 

necessarily entail a host of individual inquiries. In the Court of Appeal‘s view,
4

although evidence of variation in how carriers performed their work might support 

Antelope Valley‘s position that it did not control the carriers‘ work, such evidence 

would not convert the critical question—how much right does Antelope Valley 

have to control what its carriers do?—from a common one capable of answer on a 

classwide basis to an individual one requiring mini-trials.

We granted Antelope Valley‘s petition for review.

DISCUSSION

I. Class Action Principles

―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. [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.‖ ‘ ‖ (Brinker 

Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) 

Here, the presence or absence of predominant common questions is the sole issue 

on appeal.1

We review the trial court‘s ruling for abuse of discretion and generally will

not disturb it ―  ̳unless (1) it is unsupported by substantial evidence, (2) it rests on 

improper criteria, or (3) it rests on erroneous legal assumptions.‘ ‖ (Brinker, 

supra, 53 Cal.4th at p. 1022.) We review the trial court‘s actual reasons for 

 

1 While the trial court also concluded class treatment was not superior to 

other means of resolving the complaint‘s claims, that determination was wholly 

derivative of its conclusion that individual questions of fact and law would 

predominate over common ones. Our opinion therefore focuses on the trial court‘s 

predominance analysis.
5

granting or denying certification; if they are erroneous, we must reverse, whether 

or not other reasons not relied upon might have supported the ruling. (Linder v. 

Thrifty Oil Co. (2000) 23 Cal.4th 429, 436.)

II. The Test for Employee Status

We begin by identifying the principal legal issues and examining the 

substantive law that will govern. In doing so, we do not seek to resolve those 

issues. Rather, the question at this stage is whether the operative legal principles, 

as applied to the facts of the case, render the claims susceptible to resolution on a 

common basis. (Brinker, supra, 53 Cal.4th at pp. 1023–1025; Sav-On Drug 

Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327 [the focus ―is on what 

type of questions—common or individual—are likely to arise in the action, rather 

than on the merits of the case‖].)

The trial court and Court of Appeal correctly recognized as the central legal 

issue whether putative class members are employees for purposes of the 

provisions under which they sue. If they are employees, Antelope Valley owes 

them various duties that it may not have fulfilled; if they are not, no liability can 

attach. In turn, whether putative class members‘ employee status can be 

commonly resolved hinges on the governing test for employment.

In deciding whether plaintiffs were employees or independent contractors, 

the trial court and Court of Appeal applied the common law test, discussed most 

recently at length in Borello, supra, 48 Cal.3d 341. We solicited supplemental 

briefing concerning the possible relevance of the additional tests for employee 

status in IWC wage order No. 1-2001, subdivision 2(D)–(F). (See Martinez v. 

Combs (2010) 49 Cal.4th 35, 57-66; Bradley v. Networkers Internat., LLC (2012) 

211 Cal.App.4th 1129, 1146–1147; Sotelo v. Medianews Group, Inc. (2012) 207 

Cal.App.4th 639, 660–662.) In light of the supplemental briefing, and because 
6

plaintiffs proceeded below on the sole basis that they are employees under the 

common law, we now conclude we may resolve the case by applying the common 

law test for employment, without considering these other tests. (Cf. Sav-on Drug 

Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 327 [the class certification 

inquiry must focus on ―whether the theory of recovery advanced by the proponents

of certification is, as an analytical matter, likely to prove amenable to class 

treatment‖].) Accordingly, we leave for another day the question what 

application, if any, the wage order tests for employee status might have to wage 

and hour claims such as these, and confine ourselves to considering whether 

plaintiffs‘ theory that they are employees under the common law definition is one 

susceptible to proof on a classwide basis.

Under the common law, ―  ̳[t]he principal test of an employment 

relationship is whether the person to whom service is rendered has the right to 

control the manner and means of accomplishing the result desired.‘ ‖ (Borello, 

supra, 48 Cal.3d at p. 350, quoting Tieberg v. Unemployment Ins. App. Bd. (1970) 

2 Cal.3d 943, 946; accord, Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 

Cal.2d 33, 43.) What matters is whether the hirer ―retains all necessary control‖ 

over its operations. (Borello, at p. 357.) ―  ̳[T]he fact that a certain amount of 

freedom of action is inherent in the nature of the work does not change the 

character of the employment where the employer has general supervision and 

control over it.‘ ‖ (Burlingham v. Gray (1943) 22 Cal.2d 87, 100; see Toyota 

Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 876; Grant 

v. Woods (1977) 71 Cal.App.3d 647, 653.) Perhaps the strongest evidence of the

right to control is whether the hirer can discharge the worker without cause, 

because ―[t]he power of the principal to terminate the services of the agent gives 

him the means of controlling the agent‘s activities.‖ (Malloy v. Fong (1951) 37 

Cal.2d 356, 370; see Borello, at p. 350; Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 
7

168, 177; Isenberg v. California Emp. Stab. Com. (1947) 30 Cal.2d 34, 39; 

Burlingham, at pp. 99–100.)2

While the extent of the hirer‘s right to control the work is the foremost 

consideration in assessing whether a common law employer-employee relationship 

exists, our precedents also recognize a range of secondary indicia drawn from the 

Second and Third Restatements of Agency that may in a given case evince an 

employment relationship. Courts may consider ―(a) whether the one performing 

services is engaged in a distinct occupation or business; (b) the kind of occupation, 

with reference to whether, in the locality, the work is usually done under the 

direction of the principal or by a specialist without supervision; (c) the skill 

required in the particular occupation; (d) whether the principal or the worker 

supplies the instrumentalities, tools, and the place of work for the person doing the 

work; (e) the length of time for which the services are to be performed; (f) the 

method of payment, whether by the time or by the job; (g) whether or not the work 

is a part of the regular business of the principal; and (h) whether or not the parties 

believe they are creating the relationship of employer-employee.‖ (Borello, supra, 

48 Cal.3d at p. 351; see, e.g., Tieberg v. Unemployment Ins. App. Bd., supra, 2 

Cal.3d at pp. 949–950 & fn. 4; Empire Star Mines Co. v. Cal. Emp. Com., supra, 

28 Cal.2d at pp. 43–44; Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 

1419, 1434; Rest.3d Agency, § 7.07, com. f, pp. 210–211; Rest.2d Agency, § 220, 

subd. (2).)3

 

2 The worker‘s corresponding right to leave is similarly relevant: ―  ̳An 

employee may quit, but an independent contractor is legally obligated to complete 

his contract.‘ ‖ (Perguica v. Ind. Acc. Com. (1947) 29 Cal.2d 857, 860.)

3 As Justice Chin‘s concurrence notes, Borello recognized ―the concept of 

 ̳employment‘ embodied in the [Workers‘ Compensation] Act is not inherently 

limited by common law principles‖ (Borello, supra, 48 Cal.3d at p. 351) and 

(footnote continued on next page)
8

III. Predominance and Common Law Employee Status

A. Control

The trial court considered the various criteria relevant to certification, 

concluding the proposed class was sufficiently numerous and ascertainable and the 

class representatives had claims typical of the class and could adequately represent 

it. It further concluded, however, that common questions did not predominate; 

instead, ―numerous individual inquiries‖ would be ―required to determine whether 

carriers are member of the class,‖ and thus a class action was not a superior way of

proceeding. This was so because the record demonstrated ―heavily individualized 

inquiries [would be] required to conduct the  ̳control test‘ ‖ and decide the central 

question whether any given worker was an employee.

As the parties and trial court correctly recognized, control over how a result 

is achieved lies at the heart of the common law test for employment. (Borello, 

supra, 48 Cal.3d at p. 350.) Indeed, absent a common (or individual, but 

manageable) means of assessing the degree of the hirer‘s control, we doubt claims 

dependent on application of the common law test could be certified.

Significantly, what matters under the common law is not how much control 

a hirer exercises, but how much control the hirer retains the right to exercise. 

 

(footnote continued from previous page)

identified a handful of other considerations that might ―overlap those pertinent 

under the common law‖ (id. at p. 354; see id. at pp. 351–355 [discussing 

additional considerations relevant in light of the remedial purposes of the statutory 

scheme there at issue]). Strictly speaking, however, those further considerations 

are not part of the common law test for employee status. The concurrence‘s 

assertion they are relevant here (conc. opn. of Chin, J., post, at pp. 12–14) rests on 

the legal assumption they play a role in deciding employee status for wage claims, 

an assumption we decline to embrace, leaving for another day resolution of its 

validity. (See Martinez v. Combs, supra, 49 Cal.4th at pp. 64, 73.)
9

(Perguica v. Ind. Acc. Com., supra, 29 Cal.2d at pp. 859–860 [―The existence of 

such right of control, and not the extent of its exercise, gives rise to the employeremployee relationship.‖]; Empire Star Mines Co. v. Cal. Emp. Com., supra, 28 

Cal.2d at p. 43 [―If the employer has the authority to exercise complete control, 

whether or not that right is exercised with respect to all details, an employeremployee relationship exists.‖]; Industrial Ind. Exch. v. Ind. Acc. Com. (1945) 26 

Cal.2d 130, 135 [―The right to control and direct the activities of the alleged 

employee or the manner and method in which the work is performed, whether 

exercised or not, gives rise to the employment relationship.‖]; S.A. Gerrard Co. v. 

Industrial Acc. Com. (1941) 17 Cal.2d 411, 414 [―the right to control, rather than 

the amount of control which was exercised, is the determinative factor‖]; Hillen v. 

Industrial Acc. Com. (1926) 199 Cal. 577, 581–582 [―It is not a question of 

interference, or non-interference, not a question of whether there have been 

suggestions, or even orders, as to the conduct of the work; but a question of the 

right to act, as distinguished from the act itself or the failure to act.‖].) Whether a 

right of control exists may be measured by asking ―  ̳ ―whether or not, if 

instructions were given, they would have to be obeyed‖ ‘ ‖ on pain of at-will 

―  ̳ ―discharge[] for disobedience.‖ ‘ ‖ (Toyota Motor Sales U.S.A., Inc. v. 

Superior Court, supra, 220 Cal.App.3d at p. 875.)

A court evaluating predominance ―must determine whether the elements 

necessary to establish liability [here, employee status] are susceptible to common 

proof or, if not, whether there are ways to manage effectively proof of any 

elements that may require individualized evidence.‖ (Brinker, supra, 53 Cal.4th at 

p. 1024.) Consequently, at the certification stage, the relevant inquiry is not what 

degree of control Antelope Valley retained over the manner and means of its 

papers‘ delivery. It is, instead, a question one step further removed: Is Antelope 

Valley‘s right of control over its carriers, whether great or small, sufficiently 
10

uniform to permit classwide assessment? That is, is there a common way to show

Antelope Valley possessed essentially the same legal right of control with respect 

to each of its carriers? Alternatively, did its rights vary substantially, such that it 

might subject some carriers to extensive control as to how they delivered, subject 

to firing at will, while as to others it had few rights and could not have directed

their manner of delivery even had it wanted, with no common proof able to 

capture these differences?

The trial court lost sight of this question. Its order reveals the denial of 

certification ultimately rested on two related determinations: (1) the record 

reflected considerable variation in the degree to which Antelope Valley exercised

control over its carriers; and (2) the putative class as a whole was not subject to 

pervasive control as to the manner and means of delivering papers. Neither of 

these considerations resolves the relevant inquiry. Whether Antelope Valley 

varied in how it exercised control does not answer whether there were variations 

in its underlying right to exercise that control that could not be managed by the 

trial court. Likewise, the scope of Antelope Valley‘s right to control the work 

does not in itself determine whether that right is amenable to common proof.

We discuss first the relationship between the right of control and the 

exercise of that control. The carriers‘ relationship with Antelope Valley was 

governed by a form contract; Antelope Valley stipulated that during the relevant 

period two such contracts were in use. Self-evidently, ―[s]uch agreements are a 

significant factor for consideration‖ in assessing a hirer‘s right to control a hiree‘s 

work. (Tieberg v. Unemployment Ins. App. Bd., supra, 2 Cal.3d at p. 952; see 

Rest.2d Agency, § 220, subd. (2)(a) [what matters is ―the extent of control which, 

by the agreement, the master may exercise over the details of the work,‖ italics 

added]; Dalton v. Lee Publications (S.D.Cal. 2010) 270 F.R.D. 555, 563 [―The 

primary factor, the right to control, is also susceptible to common proof. This is 
11

because the rights and obligations of the class members and Defendant are set 

forth in two sets of substantially identical contracts.‖]; Norris-Wilson v. Delta-T 

Group, Inc. (S.D.Cal. 2010) 270 F.R.D. 596, 608 [same].)

At the certification stage, the importance of a form contract is not in what it

says, but that the degree of control it spells out is uniform across the class. Here,

for example, the two form contracts address, similarly for all carriers, the extent of 

Antelope Valley‘s control over what is to be delivered, when, and how, as well as 

Antelope Valley‘s right to terminate the contract without cause on 30 days‘ notice.

The trial court here afforded only cursory attention to the parties‘ written 

contract, instead concentrating on the particulars of the parties‘ many declarations

and detailing a dozen or so ways in which delivery practices, or Antelope Valley‘s

exercise of control over those practices, varied from carrier to carrier—e.g., 

whether carriers were instructed on how to fold papers, whether they bagged or 

―rubber banded‖ papers, and whether they followed the delivery order on their 

route lists. In so doing, the court focused on the wrong legal question—whether 

and to what extent Antelope Valley exercised control over delivery. But what 

matters is whether a hirer has the ―legal right to control the activities of the 

alleged agent‖ (Malloy v. Fong, supra, 37 Cal.2d at p. 370, italics added) and, 

more specifically, whether the extent of such legal right is commonly provable. In 

cases where there is a written contract, to answer that question without full

examination of the contract will be virtually impossible. (See Tieberg v. 

Unemployment Ins. App. Bd., supra, 2 Cal.3d at p. 952 [written agreements are a 

―significant factor‖ in assessing the right to control]; Grant v. Woods, supra, 71 

Cal.App.3d at p. 653 [―Written agreements are of probative significance‖ in 

evaluating the extent of a hirer‘s right to control].) Evidence of variations in how 

work is done may indicate a hirer has not exercised control over those aspects of a

task, but they cannot alone differentiate between cases where the omission arises 
12

because the hirer concludes control is unnecessary and those where the omission is 

due to the hirer‘s lack of the retained right. That a hirer chooses not to wield 

power does not prove it lacks power. (Malloy, at p. 370 [―It is not essential that 

the right of control be exercised or that there be actual supervision of the work of 

the agent. The existence of the right of control and supervision establishes the 

existence of an agency relationship.‖]; Robinson v. George (1940) 16 Cal.2d 238, 

244 [absence of evidence a hirer ―exercised any particular control over the details‖ 

of the work does not show the hirer lacked the right to do so].) One must consider 

the contract as well.

This is not to say the parties‘ course of conduct is irrelevant. While any 

written contract is a necessary starting point, Tieberg recognizes the rights spelled 

out in a contract may not be conclusive if other evidence demonstrates a practical 

allocation of rights at odds with the written terms. (Tieberg v. Unemployment Ins. 

App. Bd., supra, 2 Cal.3d at p. 952.) In deciding whether claims that hinge on 

common law employee status are certifiable, then, a court appropriately may 

consider what control is ―necessary‖ given the nature of the work (Borello, supra, 

48 Cal.3d at p. 357, italics omitted), whether evidence of the parties‘ course of 

conduct will be required to evaluate whether such control was retained, and 

whether that course of conduct is susceptible to common proof—i.e., whether 

evidence of the parties‘ conduct indicates similar retained rights vis-à-vis each 

hiree, or suggests variable rights, such that individual proof would need to be 

managed.

Relatedly, the existence of variations in the extent to which a hirer exercises 

control does not necessarily show variation in the extent to which the hirer 

possesses a right of control, or that the trial court would find any such variation 

unmanageable. That a hirer may monitor one hiree closely and another less so, or 

enforce unevenly a contractual right to dictate the containers in which its product 
13

is delivered, does not necessarily demonstrate that the hirer could not, if it chose, 

monitor or control the work of all its hirees equally. (See Estrada v. FedEx 

Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 13–14 [recognizing that 

how a hirer exercised control over a particular hiree might show, not the hirer‘s 

differential control of that hiree, but the extent of its common right to control all 

its hirees].) For class certification under the common law test, the key question is 

whether there is evidence a hirer possessed different rights to control with regard 

to its various hirees, such that individual mini-trials would be required. Did 

Antelope Valley, notwithstanding the form contract it entered with all carriers, 

actually have different rights with respect to each that would necessitate minitrials?

With one exception, the trial court considered only variations in the actual 

exercise of control4 and, by finding such variations sufficient to defeat 

certification, erroneously treated them as the legal equivalent of variations in the 

right to control. Indeed, in places the trial court found Antelope Valley had a 

uniform right of control, or uniform lack of right, but notwithstanding these 

uniformities immediately thereafter considered as probative variations in carrier 

practices, or in Ayala‘s exercise of its rights. For example, the trial court 

concluded, citing the form contract, that Antelope Valley uniformly did not 

require carriers to purchase rubber bands or bags exclusively from it, but then 

noted some carriers did and some did not, a variation that shed no light on the 

relevant inquiry. Similarly, the trial court concluded Antelope Valley had a 

 

4 The exception: As the trial court‘s order notes, one of the two exemplars of 

the form contract used during the class period requires carriers to pick up papers 

from the designated location no later than 3:00 a.m. The other has no similar 

deadline.
14

contractual right to impose complaint charges, but then focused on individual 

variations in how Antelope Valley exercised that undisputed right against different 

carriers.

We next discuss the relationship between the right of control and the issue 

for certification purposes, variation in that right. After identifying various 

differences in how carriers delivered papers, the trial court concluded ―the putative 

class of [Antelope Valley] newspaper carriers was not subject to the  ̳pervasive 

and significant control‘ [of Antelope Valley] over the means and manner by which 

they performed their work.‖ Consequently, the court held, ―[t]he evidence before 

the Court demonstrates that there is no commonality regarding the right to 

control.‖ The conclusion does not follow from the premise; indeed, as we discuss, 

the conclusion is a contradiction of the premise.

Preliminarily, whether the court‘s premise (that carriers are not subject to 

pervasive control) is intended to reflect a finding about the limits of Antelope 

Valley‘s right to control its carriers‘ work or, like much of the court‘s preceding

discussion, only a finding about the limited exercise of such rights, is uncertain. 

To the extent the finding relates to the exercise of rights, as it appears to, it is 

problematic for all the reasons just discussed. But even assuming for present 

purposes the finding concerns the scope of Antelope Valley‘s legal rights, it does 

not support denial of class certification.

The extent of Antelope Valley‘s legal right of control is a point of 

considerable dispute; indeed, it is likely the crux of the case‘s merits. To address

such an issue on a motion for class certification is not necessarily erroneous. We

recently reaffirmed that a court deciding a certification motion can resolve legal or 

factual disputes: ―To the extent the propriety of certification depends upon 

disputed threshold legal or factual questions, a court may, and indeed must, 

resolve them.‖ (Brinker, supra, 53 Cal.4th at p. 1025; see Dailey v. Sears, 
15

Roebuck & Co. (2013) 214 Cal.App.4th 974, 990–991.) But we cautioned that 

such an inquiry generally should occur only when ―necessary.‖ (Brinker, at 

p. 1025.) The key to deciding whether a merits resolution is permitted, then, is 

whether certification ―depends upon‖ the disputed issue. (Ibid.)

Certification of class claims based on the misclassification of common law 

employees as independent contractors generally does not depend upon deciding 

the actual scope of a hirer‘s right of control over its hirees. The relevant question 

is whether the scope of the right of control, whatever it might be, is susceptible to 

classwide proof. Bypassing that question, the trial court instead proceeded to the 

merits.

5 In so doing, the court made the same mistake others have when deciding 

whether to certify claims predicated on common law employee status, ―focus[ing]

too much on the substantive issue of the defendant‘s right to control its newspaper 

deliverers, instead of whether that question could be decided using common 

proof.‖ (Dalton v. Lee Publications, supra, 270 F.R.D. at p. 564.) Moreover, by 

purporting to resolve on a classwide basis the scope of Antelope Valley‘s right to 

control its carriers, the trial court contradicted its own conclusion, that classwide 

assessment of Antelope Valley‘s right to control is infeasible.

The difficulties with the court‘s ruling on class certification thus lie not in 

the answers given, but the questions asked. A certification decision is reviewed 

for abuse of discretion, but when the supporting reasoning reveals the court based 

its decision on erroneous legal assumptions about the relevant questions, that 

decision cannot stand. (Brinker, supra, 53 Cal.4th at p. 1022; Fireside Bank v. 

Superior Court (2007) 40 Cal.4th 1069, 1089; Linder v. Thrifty Oil Co., supra, 23 

 

5 Assuming again one were to treat the trial court‘s absence of control 

determination as speaking to the absence of a sufficient right to control, and not 

merely to an absence of the exercise of control.
16

Cal.4th at pp. 435–436.) The trial court denied certification both because of 

individual variations in whether Antelope Valley exercised control and because 

control was not pervasive, rather than asking whether Antelope Valley‘s 

underlying right of control was subject to variations that would defy classwide

proof and prove unmanageable. That some other analytical path might, on this 

record, support the same disposition matters not; because the reasons given are 

unsound, the ruling must be reversed. (Linder, at p. 436.) In such a case, the 

preferred course is to remand for the trial court to reconsider class certification 

under the correct legal standards. (Id. at pp. 448–449.)

B. Secondary Factors

After concluding variations in control precluded class certification, the trial 

court noted as well individual variations in a handful of the secondary factors that 

supplement the central inquiry into the right of control (see Borello, supra, 48 

Cal.3d at pp. 350–351; Tieberg v. Unemployment Ins. App. Bd., supra, 2 Cal.3d at 

p. 950 & fn. 4), including whether carriers are engaged in a distinct occupation or 

business; their instrumentalities, tools, and place of work; and the length of time 

for which services are to be performed. Because the Court of Appeal addressed 

these factors‘ role, the parties have briefed their application at length, and they

may affect class certification on remand, we briefly discuss the interplay between 

the secondary factors and the predominance inquiry.

Preliminarily, we caution that courts assessing these secondary factors 

should take care to correctly identify the relevant considerations. Here, for 

example, the trial court noted variation in the ―place of work.‖ The inquiry that 

sheds light on a hiree‘s common law employee status, however, is into who 

provides the place of work, the hirer or hiree (Borello, supra, 48 Cal.3d at p. 351; 

Rest.3d Agency, § 7.07, com. f, p. 211; Rest.2d Agency, § 220, subd. (2)(e)), and 

thus the relevant inquiry is whether there is variation in who provides facilities. 
17

That carriers could pick up papers at any of several Antelope Valley warehouses 

or drop locations, as Antelope Valley argued, does not show variation in the 

underlying secondary factor.

In evaluating how a given secondary factor may affect class certification, a 

court must identify whether the factor will require individual inquiries or can be 

assessed on a classwide basis. In a case where every class member performs the 

same tasks, some factors will always be common, such as the kind of occupation 

and the skill it requires. (Borello, supra, 48 Cal.3d at p. 351.) Other factors that 

might on their face seem to turn solely on the peculiarities of the parties‘ particular 

arrangement, the Restatement intended to depend as well on general custom with 

respect to the nature of the work: ―It is not determinative that the parties believe 

or disbelieve that the relation of master and servant exists, except insofar as such 

belief indicates an assumption of control by the one and submission to control by 

the other. However, community custom in thinking that a kind of service, such as 

household service, is rendered by servants, is of importance.‖ (Rest.2d Agency, 

§ 220, com. m, p. 492; see also id., com. i, p. 489 [―The custom of the community 

as to the control ordinarily exercised in a particular occupation is of 

importance.‖].) Depending on the record, still other factors may vary from hiree 

to hiree. (See Sotelo v. Medianews Group, Inc., supra, 207 Cal.App.4th at 

pp. 657–658.)

Once common and individual factors have been identified, the 

predominance inquiry calls for weighing costs and benefits. ―The  ̳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.‘ ‖ (Brinker, supra, 53 

Cal.4th at p. 1021.) ―Individual issues do not render class certification 
18

inappropriate so long as such issues may effectively be managed.‖ (Sav-On Drug 

Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334; accord, Duran v. U.S. 

Bank National Association (2014) 59 Cal.4th 1, 29.)

When the issue of common law employment is involved, that weighing 

must be conducted with an eye to the reality that the considerations in the multifactor test are not of uniform significance. Some, such as the hirer‘s right to fire at 

will and the basic level of skill called for by the job, are often of inordinate 

importance. (See Burlingham v. Gray, supra, 22 Cal.2d at p. 100 [―  ̳Perhaps no 

single circumstance is more conclusive to show the relationship of an employee 

than the right of an employer to end the service whenever he sees fit to do so.‘ ‖]; 

Rest.2d Agency, § 220, com. i, p. 489 [the hirer‘s right of control, ―together with 

the skill which is required in the occupation, is often of almost conclusive 

weight‖].) Others, such as the ―ownership of the instrumentalities and tools‖ of 

the job, may be of ―only . . . evidential value,‖ relevant to support an inference that 

the hiree is, or is not, subject to the hirer‘s direction and control. (Rest.2d Agency, 

§ 220, com. k, p. 491; see Tieberg v. Unemployment Ins. App. Bd., supra, 2 Cal.3d 

at p. 953 [many secondary factors ―are mer[e]ly evidentiary indicia of the right to 

control‖ and may be of ―minute consequence‖ when independent evidence clearly 

establishes that right].) Moreover, the significance of any one factor and its role in 

the overall calculus may vary from case to case depending on the nature of the 

work and the evidence. (Borello, supra, 48 Cal.3d at p. 354.)

Accordingly, the impact of individual variations on certification will 

depend on the significance of the factor they affect. Some may be of no 

consequence if they involve minor parts of the overall calculus and common proof 

is available of key factors such as control, the skill involved, and the right to 

terminate at will; conversely, other variations, if they undermine the ability to 

prove on a common basis the most significant factor or factors in a case, may 
19

render trial unmanageable even where other factors are common. The proper 

course, if there are individual variations in parts of the common law test, is to 

consider whether they are likely to prove material (see Bradley v. Networkers 

Internat., LLC, supra, 211 Cal.App.4th at p. 1147 [variations do not defeat 

certification where they are insufficiently significant to the overall inquiry]; 

Dalton v. Lee Publications, supra, 270 F.R.D. at pp. 562–563 [same]; NorrisWilson v. Delta-T Group, Inc., supra, 270 F.R.D. at p. 608 [same]), and, if 

material, whether they can be managed (Brinker, supra, 53 Cal.4th at p. 1024). 

Here, the trial court simply recited secondary factor variations it found 

without doing the necessary weighing or considering materiality. This was 

understandable, as the court had already determined substantial variations in 

control existed, a determination that, had it been sound, would have been 

sufficient to justify denying class certification and thus obviated any need for 

further inquiry. On remand, any consideration of common and individual 

questions arising from the secondary factors should take into account the likely

materiality of matters subject to common or individual proof.
20

DISPOSITION

We affirm the Court of Appeal‘s judgment and remand for further 

proceedings not inconsistent with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KENNARD, J.*

 

* Retired Associate Justice of the Supreme Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
CONCURRING OPINION BY BAXTER, J.

I agree with the majority on the following points: First, whether one 

retained to provide compensated service to another is an employee or an 

independent contractor for purposes of the common law depends primarily on the 

degree to which the hirer has the legal right to control the manner and means of 

performance, as opposed to the extent to which the hirer exercises (or attempts to 

exercise) such control. Second, where a written contract specifies the terms of the 

relationship between hirer and hiree, setting out their respective degrees of control 

over the work, such a contract is generally the most significant determinant of 

whether an employer-employee relationship has arisen. Third, whether the issue 

of employee status can be resolved on a classwide basis thus depends on the 

degree to which it appears the hirer‘s legal right of control, however great or 

small, was similar for all members of the putative class — as evidenced, for 

example, by a standard contract that was common to all.

Applying these principles, I concur in the majority‘s conclusion that the 

trial court‘s denial of class certification proceeded on incorrect principles. As the 

majority indicates, the trial court erred by focusing its attention exclusively on 

evidence that defendant actually imposed more detailed supervisory control over 

some of its contract newspaper carriers than others, and that the degree of such 

actual supervision varied widely from carrier to carrier. I therefore join the 

majority‘s holding that the Court of Appeal‘s judgment, overturning the trial 
2

court‘s order and remanding for further proceedings, should be affirmed. In my 

view, nothing more need be said to reach this conclusion, and I therefore express 

no opinion on any other matter discussed by the majority.

BAXTER, J.

I CONCUR:

CORRIGAN, J.
CONCURRING OPINION BY CHIN, J.

I agree that the trial court committed error in the course of ruling on the 

class certification motion of named plaintiffs Maria Ayala, Josefina Briseño, Rosa 

Duran, and Osman Nuñez, that remand for further consideration of the motion is 

necessary, and that affirmance of the Court of Appeal‘s judgment is appropriate. 

The record indicates that the trial court did not adequately consider the extent to 

which there will be common proof regarding a central factor in determining 

whether carriers who deliver newspapers for defendant Antelope Valley 

Newspapers, Inc. (Antelope Valley) are employees or independent contractors: 

the extent to which Antelope Valley has the right to control the manner and means 

by which the carriers accomplish their work. The record also suggests that the 

trial court did not adequately perform the weighing of common and individualized 

proof necessary to determine whether common issues predominate. 

However, in several respects, I question the majority‘s legal analysis. I also 

do not endorse its dicta regarding some of the secondary factors that are relevant 

to determining whether someone who provides service to another is an employee 

or an independent contractor. (Maj. opn., ante, at pp. 16-19.) I therefore concur 

only in the judgment.
2

I. FACTUAL AND PROCEDURAL BACKGROUND.

In December 2008, plaintiffs sued on behalf of a putative class of 

newspaper carriers, alleging that Antelope Valley improperly treated them as 

independent contractors instead of employees and improperly denied them various 

statutory wage and hour protections. The complaint alleged numerous violations 

of our labor laws — including unpaid overtime, unlawful deductions, failure to 

provide breaks, and failure to reimburse for business expenses — and unfair 

competition based on those violations. Plaintiffs moved for class certification, 

contending that the central question in establishing liability — whether carriers are 

employees or independent contractors — would be resolved through common 

proof, principally the contracts between Antelope Valley and its carriers.

Antelope Valley opposed certification, arguing in relevant part that there 

was insufficient commonality regarding proof of its right to control the means and 

manner by which its carriers accomplish their work, its actual exercise of control, 

and various secondary factors that, under S. G. Borello & Sons, Inc. v. Department 

of Industrial Relations (1989) 48 Cal.3d 341, 350 (Borello), are relevant to 

determining whether a service provider is an employee or an independent 

contractor. Antelope Valley further argued that even were the carriers employees, 

some of the causes of action presented additional unmanageable individual issues 

that should nevertheless preclude certification.

The trial court denied the certification motion, finding that plaintiffs had 

failed to show that (1) ―common questions of law or fact predominate,‖ (2) ―a 

class action would be  ̳superior‘ to individual lawsuits,‖ or (3) despite the ―highly 

individualized‖ nature of ―the issues affecting the class,‖ ―manageability is 

achievable through the use of‖ various procedural tools, including questionnaires, 

surveys, and representative sampling. As to the claims still at issue in this appeal, 

the Court of Appeal reversed, believing that the trial court had based its ruling on 
3

―variations in how the carriers performed their jobs,‖ and finding that ―those 

variations do not present individual issues that preclude class certification.‖ We 

then granted Antelope Valley‘s petition for review.

II. THE LEGAL INQUIRY.

As relevant to this appeal, plaintiffs, as the proponents of certification, had 

the burden in the trial court to demonstrate that ―  ̳questions of law or fact 

common to the class predominate over the questions affecting the individual 

members.‘ ‖ (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 

1104.) ―To assess predominance, a court  ̳must examine the issues framed by the 

pleadings and the law applicable to the causes of action alleged.‘ [Citation.] It 

must determine whether the elements necessary to establish liability are 

susceptible of common proof or, if not, whether there are ways to manage 

effectively proof of any elements that may require individualized evidence. 

[Citation.]‖ (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 

1024 (Brinker).) Thus, in assessing predominance, courts ―must carefully evaluate 

the nature of the proof‖ the parties will present. (Keating v. Superior Court (1982) 

31 Cal.3d 584, 622.) The ―ultimate question‖ is whether ―the issues [that] 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.‖ (Collins v. Rocha (1972) 

7 Cal.3d 232, 238.) 

The decision to grant or deny a certification motion ―rests squarely within 

the discretion of the trial court‖ because the trial court is ―  ̳ideally situated to 

evaluate the efficiencies and practicalities of permitting group action.‘ ‖ (Fireside 

Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.) Accordingly, reviewing 

courts ―afford‖ trial court decisions ―great deference on appeal, reversing only for 

a manifest abuse of discretion.‖ (Ibid.) Under its ―narrowly circumscribed‖ 
4

inquiry, a reviewing court generally may not disturb an order denying certification 

unless ―  ̳it is unsupported by substantial evidence‘ ‖ or ―  ̳rests on improper 

criteria . . . or . . . erroneous legal assumptions.‘ ‖ (Brinker, supra, at p. 1022.) In 

applying this test, a reviewing court ―must  ̳[p]resum[e] in favor of the [trial 

court‘s] order . . . the existence of every fact the trial court could reasonably 

deduce from the record . . . .‘ [Citation.]‖ (Ibid.) 

As we have recognized, the predominance inquiry ―may be enmeshed with‖ 

issues ―affecting the merits of a case.‖ (Linder v. Thrifty Oil Co. (2000) 23 

Cal.4th at 429, 443.) ―When evidence or legal issues germane to the certification 

question bear as well on aspects of the merits, a court may properly evaluate 

them.‖ (Brinker, supra, 53 Cal.4th at pp. 1023-1024.) ―[I]if the parties‘ evidence 

is conflicting on the issue of whether common or individual questions 

predominate . . . , the trial court is permitted to credit one party‘s evidence over the 

other‘s in determining whether the requirements for class certification have been 

met — and doing so is not . . . an improper evaluation of the merits of the case. 

[Citations.]‖ (Dailey v. Sears, Roebuck and Co. (2013) 214 Cal.App.4th 974, 991, 

citing Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 331 

(Sav-On).) To the extent the trial court‘s order turns on inferences to be drawn 

from the facts or on an evaluation of the credibility of conflicting evidence, a 

reviewing court may not ―substitute‖ its ―judgment for the trial court‘s.‖ (Sav-On, 

supra, at p. 331.) Even at the certification stage, ―  ̳questions as to the weight and 

sufficiency of the evidence, the construction to be put upon it, the inferences to be 

drawn therefrom, the credibility of witnesses . . . and the determination of [any] 

conflicts and inconsistency in their testimony are matters for the trial court to 

resolve.‘ [Citation.]‖ (Id. at p. 334.) 

Under the complaint, as a prerequisite to recovery, plaintiffs must establish 

that they are employees of Antelope Valley rather than independent contractors. 
5

In litigating the certification motion below, both plaintiffs and Antelope Valley 

maintained that this issue is governed by the principles and considerations Borello 

set forth. Consistent with the parties‘ arguments, both the trial court and the Court 

of Appeal applied Borello‘s principles in determining whether certification was 

appropriate. In accordance with Antelope Valley‘s petition for review, the issue 

on which we granted was whether the trial court abused its discretion in finding 

that, under Borello‘s test for determining whether someone is an employee or an 

independent contractor, common questions of law or fact will not predominate 

over individual questions. 

The issue in Borello was whether, for purpose of workers‘ compensation 

coverage, certain agricultural laborers were employees or independent contractors. 

(Borello, supra, 48 Cal.3d at p. 345.) In answering this question, we began by 

explaining that the Workers‘ Compensation Act distinguishes between covered 

employees and noncovered independent contractors based on ―the common law 

 ̳control-of-work‘ test,‖ under which an employment relationship exists if ―  ̳the 

person to whom service is rendered has the right to control the manner and means 

of accomplishing the result desired. . . .‘ [Citations.]‖ (Id. at p. 350.) We next 

held that, because ―the  ̳control‘ test, applied rigidly and in isolation, is often of 

little use in evaluating the infinite variety of service arrangements,‖ it is 

appropriate to consider various ―  ̳secondary‘ indicia of the nature of a service 

relationship.‖ (Ibid.) We found the relevant secondary indicia in multiple 

sources. From our own decisions, we identified ―  ̳the right to discharge at will, 

without cause,‘ ‖ as a factor. (Ibid.) We then listed ―[a]dditional factors [that had] 

been derived principally from‖ the Restatement Second of Agency (sometimes, 

Restatement). (Borello, supra, at p. 351.) We then identified factors the 

Legislature had identified in Labor Code section 2750.5. (Borello, supra, at p. 

351, fn. 5.) Finally, we identified factors the federal courts had adopted in 
6

applying the federal Fair Labor Standards Act (FLSA factors). (Borello, supra, at 

pp. 354-355.) All of these factors, we held, are relevant to determining whether 

someone is an employee under the worker‘s compensation law. (Ibid.)

Consistent with Borello, in determining whether common questions of law 

or fact predominate, the trial court principally focused on Antelope Valley‘s ―right 

to control.‖ It found that the evidence the parties had submitted ―demonstrates 

that there is no commonality regarding the right to control‖ and that ―heavily 

individualized inquiries [will be] required to conduct the  ̳control test.‘ ‖ 

Regarding the secondary factors, the trial court found that ―[s]ome carriers use 

helpers or substitutes‖; ―some carriers have multiple clients and customers; some 

have distinct occupation or delivery businesses; there is no commonality in the 

instrumentalities, tools, and place of work; carriers may or may not take advantage 

of chances to generate profits; and the length of time to perform services varies.‖ 

Contrary to what the majority opinion suggests (maj. opn., ante, at p. 11), in 

reaching these conclusions, the trial court considered several aspects of Antelope 

Valley‘s contracts with its carriers, specifically the following: (1) some contracts 

included a ―dock closing policy‖ while others did not; (2) the contracts did not 

require carriers to purchase rubber bands or bags from Antelope Valley; (3) the 

contracts stated that carriers may not put newspapers in containers that Antelope 

Valley has not approved; (4) the contracts provided for complaint charges; (5) the 

contracts provided some carriers with an option to redeliver newspapers to correct 

complaints, but that option was not available for certain routes or areas; and (6) 

the contracts provided that carriers could increase their profits by increasing the 

number of subscribers in their areas of delivery. The trial court also considered 

evidence — declarations and deposition testimony — showing how individual 

carriers actually performed their delivery duties, how Antelope Valley actually 
7

exercised control over the delivery process and its carriers as a group, and how 

Antelope Valley actually exercised such control with respect to particular carriers.

III. THE TRIAL COURT ERRED IN MAKING ITS RULING.

I agree with the majority that the trial court abused its discretion in making 

its ruling and that remand is appropriate for further consideration of the 

certification motion. As noted above, in denying certification, the trial court found 

that the evidence ―demonstrates that no commonality exists regarding the right to 

control.‖ However, the evidence plaintiffs submitted and principally relied on in 

support of their certification motion — including the form contracts between 

Antelope Valley and its carriers and the delivery instructions (known as ―Bundle 

Tops‖) that Antelope Valley typically prepared and provided to all carriers each 

day — shows that there is, in fact, some commonality in the proof regarding 

Antelope Valley‘s right of control. Moreover, there surely is some commonality 

of proof regarding at least some of the secondary factors that are relevant under 

Borello to determine whether someone is an employee or independent contractor. 

Thus, in terms of proof, the trial court‘s ―no commonality‖ finding lacks support 

in the record and reflects insufficient consideration of the common proof plaintiffs 

submitted.

In addition, as we have explained, ―  ̳that each [putative] class member 

might be required ultimately to justify an individual claim does not necessarily 

preclude maintenance of a class action.‘ [Citation.] Predominance is a 

comparative concept, and  ̳the necessity for class members to individually 

establish eligibility and damages does not mean individual fact questions 

predominate.‘ [Citations.] Individual issues do not render class certification 

inappropriate so long as such issues may effectively be managed. [Citations.]‖ 

(Sav–On, supra, 34 Cal.4th at p. 334.) The ―ultimate question‖ is whether ―the 

issues [that] may be jointly tried, when compared with those requiring separate 
8

adjudication, are so numerous or substantial that the maintenance of a class action 

would be advantageous to the judicial process and to the litigants.‖ (Collins v. 

Rocha, supra, 7 Cal.3d at p. 238.) ―The relevant comparison lies between the costs 

and benefits of adjudicating plaintiffs‘ claims in a class action and the costs and 

benefits of proceeding by numerous separate actions — not between the 

complexity of a class suit that must accommodate some individualized inquiries 

and the absence of any remedial proceeding whatsoever.‖ (Sav-On, supra, at p. 

339, fn. 10, italics omitted.) The record indicates that the trial court did not make 

the necessary comparison; it focused on the individualized proof it believed would 

be necessary regarding Antelope Valley‘s right and actual exercise of control, and 

gave little or no consideration to the common proof plaintiffs submitted on these 

issues. By failing to make the legally required comparison, the trial court abused 

its discretion. I therefore agree we should affirm the Court of Appeal‘s judgment 

and remand for additional consideration of the certification motion.

IV. THE MAJORITY’S OPINION.

Although I agree with the majority‘s result, I question several aspects of its 

analysis. I begin with the fundamental rule that ―[o]n appeal, we presume that a 

judgment or order of the trial court is correct,  ̳ ―[a]ll intendments and 

presumptions are indulged to support it on matters as to which the record is silent,

and error must be affirmatively shown.‖ ‘ [Citation.]‖ (People v. Giordano (2007) 

42 Cal.4th 644, 666.) Consistent with these principles, to the extent the trial 

court‘s order is ambiguous, we must ―resolve the ambiguity in favor of 

affirmance.‖ (Piscitelli v. Salesian Soc. (2008) 166 Cal.App.4th 1, 7, fn. 9.) I find 

the majority‘s approach, which generally seems to read the trial court‘s ruling in 

the most unfavorable light, to be out of step with these well-established principles 

of appellate review.
9

More specifically, I find many of the numerous criticisms the majority 

levels at the trial court‘s ruling to be off the mark. For example, I disagree that the 

trial court ―ultimately rested‖ its order on variations ―in the degree to which 

Antelope Valley exercised control over its carriers‖ and the circumstance that ―the 

putative class as a whole was not subject to pervasive control as to the manner and 

means of delivering papers,‖ thus ―los[ing] sight‖ of the relevant question ―at the 

certification stage‖ (maj. opn., ante, at pp. 9-10): ―is there a common way to show 

Antelope Valley possessed essentially the same legal right of control with respect 

to each of its carriers‖ (id. at pp. 9-10). As noted above, in finding insufficient 

commonality, the trial court expressly considered the extent to which the contracts

showed either variations or uniformity in Antelope Valley‘s ―right to 

control‖ regarding several issues, including complaint charges, when carriers 

perform their work, use of unapproved containers, redelivery, and the carriers‘ 

ability to increase profits. Indeed, the majority acknowledges elsewhere in its 

opinion that the trial court did, in fact, consider ways in which the contracts show 

―a uniform right of control, or uniform lack of right,‖ but it then criticizes the trial 

court for considering evidence that the parties‘ actual course of conduct was 

different. (Maj. opn., ante, at p. 13.) 

Contrary to the majority‘s criticism, the trial court‘s analysis was 

completely consistent with — indeed, was actually required by — Borello. There, 

we stressed that the right to control test ―is not necessarily the decisive test‖ 

(Borello, supra, 48 Cal.3d at p. 351, fn. 5), that ―common law principles are not

dispositive of the employment relationship‖ (id. at p. 352, fn. 6), that ―[t]he nature 

of the work, and the overall arrangement between the parties, must be examined‖ 

in addition to the right to control (id.at p. 353), and that ―[e]ach service 

arrangement must be evaluated on its facts, and the dispositive circumstances may 

vary from case to case‖ (id. at p. 354). Consistent with these statements, in 
10

finding as a matter of law that the agricultural laborers in Borello were employees, 

we explained that the evidence showed that the grower, ―though purporting to 

relinquish supervision of the harvest work itself‖ (id. at p. 355), actually

―  ̳exercise[d]  ̳pervasive control over the operation as a whole‘ ‖ (id. at p. 356). 

Significantly, we expressly noted that, given this evidence of the grower‘s actual 

exercise of control, a contractual provision purporting to give the laborers joint 

control over acceptable buyers was entitled to ―little credence.‖ (Id. at p. 356, fn. 

7.) Thus, in considering the parties‘ actual course of conduct in addition to the 

contracts, the trial court here simply did what Borello required it to do. It also did 

what the record shows both plaintiffs and Antelope Valley urged it to do. 

Applying Borello at the certification stage, the trial court had to determine the 

extent to which there would be common proof regarding the ―overall arrangement 

between‖ Antelope Valley and each of the putative class members. (Id. at p. 353.) 

The trial court‘s ruling indicates that the trial court did precisely that.

Nor do I agree with the majority that the trial court, ―by finding‖ that 

―variations in the actual exercise of control‖ were ―sufficient to defeat 

certification, erroneously treat[ed] them as the legal equivalent of variations in the 

right to control.‖ (Maj. opn., ante, at p. 13.) The majority‘s view appears to stem 

from its belief that the determination of whether the carriers were employees or 

independent contractors turns only on Antelope Valley‘s right to control. As 

explained above, Borello establishes otherwise. So does another decision on 

which Borello extensively relied and which the majority cites: Tieberg v. 

Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 946. (Borello, supra, 48 Cal.3d 

at pp. 349-351; maj. opn., ante, at p. 12.) There, we held that, in determining that 

certain television writers were employees and not independent contractors, the 

trial court had ―improperly‖ declined to consider relevant secondary indicia, 

including the Restatement factors. (Tieberg, supra, at p. 946.) We also noted that 
11

―the terminology in an agreement is not conclusive,‖ even if it states that one party 

has ―  ̳complete control of the services which the employee will render.‘ ‖ (Id. at 

p. 952.) Nevertheless, we upheld the trial court‘s determination because the trial 

court had relied not ―solely upon‖ the alleged right to control under ―the 

provisions of the contract,‖ but also on evidence that it had ―in fact exercised 

control and direction over the writers.‖ (Ibid.) Thus, under Borello and its 

predecessors, evidence of an alleged employer‘s ―actual exercise of control‖ has 

independent significance, and ―variations in the . . . exercise of control‖ are 

independently relevant to the certification question. (Maj. opn., ante, at p.13.) 

Accordingly, there is no basis for the majority‘s assumption that by resting its 

decision in part on ―variations in the actual exercise of control,‖ the trial court was 

―treat[ing] them as the legal equivalent of variations in the right to control.‖ 

(Ibid.) Moreover, given Borello and Tieberg, the majority errs in stating that ―how 

much control a hirer exercises‖ does not ―matter[],‖ and that the only thing that 

―matters‖ is ―how much control the hirer retains the right to exercise‖ (maj. opn., 

ante, at p. 8) and whether ―there were variations in‖ Antelope Valley‘s 

―underlying right to exercise‖ control over its carriers (maj. opn., ante, at p. 10, 

italics omitted). 

I also do not entirely agree with the majority‘s assertion that, ―[a]t the 

certification stage, the importance of a form contract is not in what it says, but that 

the degree of control it spells out is uniform across the class.‖ (Maj. opn., ante, at 

p. 11.) As noted above, to assess predominance, a court ―must determine whether 

the elements necessary to establish liability are susceptible of common proof or, if 

not, whether there are ways to manage effectively proof of any elements that may 

require individualized evidence. [Citation.]‖ (Brinker, supra, 53 Cal.4th at p. 

1024.) Insofar as the terms of a form contract make clear that the alleged 

employer‘s right of control is extensive, it is more likely that the elements 
12

necessary to establish liability will be susceptible of common proof and that there 

will be ways effectively to manage proof of elements that may require 

individualized evidence. Insofar as the terms of a form contract provide that the 

alleged employees retain extensive control over the details of their work, it is less 

likely that the elements necessary to establish liability will be susceptible of 

common proof and that there will be ways effectively to manage proof of elements 

that may require individualized evidence. Accordingly, what a form contract says 

may be of considerable importance in determining whether common issue 

predominate.

I also disagree we should limit our analysis to whether the trial court 

abused its discretion in applying the ―common law test‖ for employment, and 

should ignore the FLSA factors Borello adopted. (Maj. opn., ante, at pp. 6, 8, fn. 

3.) Contrary to what the majority indicates, neither the trial court nor the Court of 

Appeal applied only ―the common law test.‖ (Maj. opn., ante, at p. 5.) The trial 

court never used the phrase ―common law‖ in either its ruling or during hearings 

on the certification motion. It did, however, consistently refer during the hearings 

to ―the Borello factors‖ and ―the criteria from the Borello case‖ and cite in its 

subsequent written ruling at least two of the FLSA factors Borello adopted: 

whether the carriers ―use helpers or substitutes from time to time‖ and whether 

they can and do take action to ―increase their profits‖ and ―compensation.‖

1 (See 

Borello, 48 Cal.3d at p. 355 [relevant FLSA factors include ―the alleged 

employee‘s opportunity for profit or loss depending on his managerial skill‖ and 

 

1 Like its final written ruling, the trial court‘s written tentative ruling did not 

mention the ―common law.‖ It did, however, state the court‘s intention to deny 

the certification motion because ―many‖ of the putative class members ―will be 

found to be true independent contractors‖ because they do not ―satisfy the Borello

factors for determination of employee vs. independent contractor status.‖
13

his or her ―employment of helpers‖].) Consistent with this ruling, the Court of 

Appeal explained that Borello (1) adopted both the Restatement factors and the 

―six-factor test developed by other jurisdictions,‖ and (2) ―cautioned that the 

individual factors — from the Restatement as well as the six-factor test —

 ̳ ―cannot be applied mechanically as separate tests; they are intertwined and their 

weight depends often on particular combinations.‖ ‘ [Citation.]‖ Nor did the Court 

of Appeal use the phrase ―common law,‖ with a single exception: in quoting the 

passage of Borello that explains why ―  ̳the ―control‖ test,‘ ‖ which derives from 

―  ̳common law tradition,‘ ‖ ―  ̳is often of little use in evaluating the infinite variety 

of service arrangements.‘ ‖ 

The lower courts‘ application of all the Borello factors is consistent with 

the arguments the parties made below. In the briefs they filed in support of their 

certification motion and during argument on the motion, plaintiffs argued that 

―[n]ewspaper delivery is an integral part of [Antelope Valley‘s] business‖ and that 

―the carriers perform an integral part of [Antelope Valley‘s] newspaper business.‖ 

―[W]hether the service rendered is an integral part of the alleged employer‘s 

business‖ is one of the FLSA factors Borello adopted. (Borello, supra, 48 Cal.3d 

at p. 355.) Moreover, in their briefing, plaintiffs relied on the ―factor‖ analysis the 

Court of Appeal used in Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 

839 (Poizner) to find that Antelope Valley‘s carriers were employees rather than 

independent contractors. Poizner, which involved Antelope Valley‘s workers‘ 

compensation insurance premium, looked to all of the factors Borello cited, 

including the FLSA factors. (Id. at p. 853.) Thus, plaintiffs did not, as the 

majority asserts, ―proceed[] below on the sole basis that they are employees under 

the common law.‖ (Maj. opn., ante, at pp. 5-6.) Likewise, in its opposition to the 

certification motion, Antelope Valley relied on the same two FLSA factors the 

trial court cited in its written ruling: some carriers use ―helpers or substitutes‖ to 
14

fulfill their contractual obligation and carriers have the ―ability to generate profits 

or incur losses.‖ Thus, the record does not support limiting our analysis to the 

common law test for employment and ignoring the FLSA factors.2 

Finally, I do not endorse the majority‘s dicta regarding the ―interplay‖ 

between ―the predominance inquiry‖ and the Restatement factors in determining 

whether someone is an employee or an independent contractor. (Maj. opn., ante, 

at p. 16.) In light of the majority‘s conclusion, that discussion is unnecessary. 

Substantively, it is also questionable in at least one respect. The majority asserts

that certain Restatement ―factors that might on their face seem to turn solely on the 

peculiarities of the parties‘ particular arrangement, the Restatement intended to 

depend as well on general custom with respect to the nature of the work.‖ (Maj. 

opn., ante, at p. 17.) However, the Restatement comment the majority quotes in 

support of this assertion describes, not multiple ―factors,‖ but only one factor: 

whether ―  ̳the parties believe or disbelieve that the relation of master and servant 

exists.‘ ‖ (Maj. opn., ante, at p. 17.) Moreover, the comment indicates, not that 

this factor depends in part ―on general custom with respect to the nature of the 

work‖ (maj. opn., ante, at p. 17), but that a separate factor is ―community custom 

in thinking that a kind of service . . . is rendered by servants‖ (Rest.2d Agency, 

§ 220, com. m, p. 492; see also id., com. h, p. 489 [listing as separate factors ―the 

fact that the community regards those doing such work as servants‖ and ―the belief 

by the parties that there is a master and servant relation‖]). 

 

2 My conclusion reflects only fidelity to the record, not, as the majority 

asserts, any ―assumption‖ on my part. (Maj. opn., ante, at p. 8, fn. 3.) In 

determining whether an order denying certification was error, an appellate court 

should apply ―the theory on which plaintiffs pursued class certification.‖ 

(Fairbanks v. Farmers New World Life Ins. Co. (2011) 197 Cal.App.4th 544, 560.)
15

For the preceding reasons, I concur in the judgment.

CHIN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Ayala v. Antelope Valley Newspapers, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 210 Cal.App.4th 77

Rehearing Granted

__________________________________________________________________________________

Opinion No. S206874

Date Filed: June 30, 2014

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Carl J. West

__________________________________________________________________________________

Counsel:

Callahan & Blaine, Daniel J. Callahan, Jill A. Thomas, Michael J. Sachs, Kathleen L. Dunham and Scott D. 

Nelson for Plaintiffs and Appellants.

Aaron Kaufmann for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiffs 

and Appellants.

Jocelyn Larkin, Della Barnett, Michael Caeser; and Fernando Flores for Asian Law Caucus, Centro de La 

Raza, Equal Rights Advocates, Impact Fund, La Raza Centro Legal, Lawyers‘ Committee for Civil Rights, 

Legal Aid Society-Employment Law Center, National Employment Law Project, Public Justice, P.C., 

Wage Justice Center, Watsonville Law Center, Western Center on Law and Poverty, Women‘s 

Employment Rights Clinic at Golden Gate University of Law and Worksafe as Amici Curiae on behalf of 

Plaintiffs and Appellants.

Perkins Coie, Sue J. Stott, William C. Rava, Jenica D. Mariani and Eric D. Miller for Defendant and 

Respondent.

Seyfarth Shaw, Camille A. Olson and David D. Kadue for The California Employment Law Council and 

The California Chamber of Commerce as Amici Curiae on behalf of Defendant and Respondent.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott D. Nelson

Callahan & Blaine

3 Hutton Centre Drive, Ninth Floor

Santa Ana, CA 92707

(714) 241-4444

Aaron Kaufmann

1330 Broadway, Suite 1450

Oakland, CA 94612

(510) 272-0169

Eric D. Miller

Perkins Coie

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

(206) 359-8000