Filed 2/11/15 Gray v. AT&T CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

AUSTIN GRAY,
Plaintiff and Appellant,

v.
AT&T et al.,
Defendants and Respondents. B249701
(Los Angeles County Super. Ct. No. BC384948)

APPEAL from orders of the Superior Court of the County of Los Angeles, William F. Highberger, Judge. Affirmed. Knapp, Petersen & Clarke, André E. Jard ini, K.L. Myles; Law Office of Thomas W. Falvey, Thomas W. Falvey and Jon D. Henderson for Plaintiff and Appellant. Orrick, Herrington & Sutcliffe, Julia A. To tten, Sara E. Dionne, Leah L. Spero; Paul, Plevin, Sullivan & Conn aughton, Michael C. Sullivan and Aaron A. Buckley for Defendants and Respondents.2 INTRODUCTION

Plaintiff and appellant Austin Gray (plaintiff) filed a class action against defendants and respondents Yellowpages.c om, LLC; Southwestern Bell Yellow Pages, Inc.; AT&T, Inc.; and AT&T Se rvices, Inc. (collectively Ye llow Pages) that defined a class of employees in 21 different job titles and sought damages for, inter alia, unpaid overtime. After initially certifying the cla ss, the trial court granted Yellow Pages’s motion to decertify and denied plaintiff’s motion to ame nd the class definition to eliminate certain job titles from the class definition. On appeal from the orders granting decer tification and denying leave to amend the class definition, plaintiff contends that the tr ial court applied the wrong legal standard in ruling on the motion to decertify and abused its discretion in denyin g her leave to amend
the class definition. We hold that becaus e the trial court applied the correct legal standard, it did not abuse its discretion by decertifying the class and that plaintiff has failed to demonstrate that she was prejudiced by the order denying leave to amend the
class definition. We therefore affirm th e two orders from which plaintiff appeals.

FACTUAL BACKGROUND

A. Yellow Pages’s Evidence Yellow Pages provides interactiv e advertising services. It connects advertisers to consumers through websites a nd cell phone applications. Yellow Pages’s generates revenue by selling ads to advertisers, whic h ads Yellow Pages prod uces and publishes electronically. Because consumers access the advertising for free, all of Yellow Pages’s
revenue comes from advertisers. The ads are produced a nd published electronically by Yellow Pages’s order fulfillment group within the operations department. Plaintiff was employed by Yellow Pages and its predecessor from April 2004 to January 2007. During her employment, plainti ff held the title of senior product manager and her responsibilities included the toolbar on the Yellowpages.com website, managing an animated website demo, and developing the Yellowpages.com channel on AT&T’s U-3 verse television product. Plai ntiff worked indepe ndently with little direct supervision, and was regularly required to exercise discretion and independent judgment. The work plaintiff performed required her to “build, mainta in, and improve the product, namely the websites smartpages.com and yellowpages.com.” Specifically, she was involved in the planning, building, testing of and re porting on the success of the live product, which tasks included building pro duct road maps, documenting requirements, creating presentations for seni or management about products , providing training for and information to the sales teams about the produc ts and relaying information to third-party vendors who contributed to the products. After she received her assignment from senior management, she would develop a plan for building the product, in cluding determining how it was going to be built, who was going to be involved in building it, who would provide input for the product, whether the product was working or was successful, and how to coordinate all the different aspects of building the products. Once plaintiff had developed an idea for a product, she would present a product-requirements document to senior staff at their weekly meeting, which the staff would review and either approve or disapprove moving forward with the project. From that point, she was responsible for presenting weekly updates to th e staff so it could make decisi ons as issues arose. The majority of her work load involved workin g on these tasks. Depending on a class memb er’s job title, job group, and assignment, class members performed many different du ties, including the following: Marketing : Some class members spent time marketing Yellow Pages’s advertisement products, such as developing contests a nd incentives for sales personne l; other class members spent time marketing the business of Yellow Pages’s customers. Creating And Improving Tools Used By Other Company Emplo yees To Produce Advertisements : Some class members spent time creating, designing, and developing technological tools fo r the company; these tools were used by other company employe es, including employees who produced the
electronic advertisements. Creating Tools Used By Th e Company To Manage Its
Business : Class members created, developed, and improved the tools used internally by the company to manage its business, including tools used for data management and to4 educate sales representatives. Creating Yellowpages.com’ s Advertiser Portal : Some employees worked on the co mpany’s advertiser portal, which provides various administrative functions for Yellowpages.c om’s advertiser customers, including the abilities to pay bills, manage listings , and view performance reports. Pricing : Some
class members worked with Yellowpages.com’s pricing group to advise the company on the pricing of advertising units. Promoting Yellow Pages With Consumers In The Marketplace : Some class members worked on consumer-faci ng tools to promote the Company in the marketplace, su ch as through the Yellowpag es.com website and mobile applications. Conducting Sales and Performance Analysis : Some class members supported Yellow Pages by analyzing data on company sales or the performance of company products; depending on the class member, this analys is took a variety of forms, ranging from conducting focus groups of sale s and marketing pers onnel to analyzing company sales and performance figures. Conducting Market Research : Some class members analyzed market data to evaluate trends, as well as understand customer needs
and user behavior. Developing And Recomme nding Company Strategy : Some class members were responsible for developing and defining the company’s strategy on different company products, including re commending and improving company products
and initiatives. Representing the Company Vi s-á-vis Outside Vendors : Some class
members interacted with ou tside vendors on behalf of the company, including determining when to use outside vendors, evaluating vendor propo sals, and negotiating
deals. Leading, Training, And Sup ervising Company Employees : Some class members had leadership responsibilities and spent time lead ing, training, and di recting the work of other company employees. Developing Company Policies : Some class members engaged in setting company policy ( e.g. , sales policies and practices, style guides) in an effort to help Yellow Pages achieve their goals. Functioning In an Executive Role : Some class members were responsibl e for the overall management of a company product line
and were akin to a chief exec utive officer of that line. Managing Complex Company Projects : Some class members spent time mana ging company projects through the lifecycle of the project, including initiation, de sign, development, te sting, and launch.5 Yellow Pages submissions included evidence that at least some, if not most, of the class members performed o ffice, non manual work, pe rformed work related to management policies or business operations, re gularly exercised inde pendent discretion, and worked on specialized tools u nder only general supervision.

B. Plaintiff’s Evidence In response to Yellow Pages’s motion to decertify, plaintiff submitted evidence
that was intended to show that all of the employees holding the job titles embraced within the class definition were “produ ction” workers. Her submis sion included two charts with quotations from Yellow Pages’s job descri ptions, quotations from certain of Yellow Pages’s declarations in support of the mo tion to decertify, a nd quotations from the depositions of Yellow Pages’s designated persons most qualif ied. The job description excerpts contained multiple references to “products” such as “websites and online products,” including “icons and ad banners, ” as did the excerpts from Yellow Pages’s declarations. In addition, one of Yello w Pages’s persons most qualified deponents referred to Yellowpages.com, LLC as a “fac tory” that built electronic “products.” Specifically, Yellow Pages’s pe rson designated most qualifie d to testify, Deric Wong, testified that Yellowpages.com, LLC was cons idered a “factory” which had “a sales arm that actually [sold] the advertising, the Ad vertising Solutions” and that Yellowpages.com, LLC was “not making things in [its] factory that you [could] drop on your foot, these [were] products that go on a computer website. . . .” The two charts of quotations were supported by copies of the Yellow Pages’s job descriptions, the declarations of its witnesses, and the portions of the deposition transcripts of the person designated most qualified to testify.

PROCEDURAL BACKGROUND

Plaintiff filed a class action complaint in February 2008, alleging that she and other similarly situated Yellow Pages’s em ployees were misclassified as exempt6 employees and, as a result, denied, inter a lia, overtime compensatio n and meal and rest periods. The parties engaged in discovery from December 2008 to February 2010. In March 2010, plaintiff filed a motion for class certification. The trial court denied the motion without prejudice, but allowed plai ntiff to conduct further discovery.
Plaintiff renewed her motion for class certification in Fe bruary 2012. She defined
the class as follows: “PRODUCTION EMPLOY EES are defined as: all employees who produced, created, generated, crafted, refined, tested, contributed to or built the electronic products in California for defendants . . . who ar e not: 1. Paid on a commission basis; or, 2. computer programmers; or, 3. In one of the ‘recognized professions’ of Wage Order 4-2001, section 1(A)(3); or 4. Those wh o supervise two or more other employees and have a monthly salary twice California’s minimum wage for full-time employment.” In May 2012, the trial court certified the class as defined by plaintiff, without prejudice to a subsequent motion to decertify. Following certification, the parties began the process of developing a class member ma iling list. The parties initially generated a class list identifying 108 job titles and 306 employees. After further work to refine the list, a final list with 21 job titles, including approximately 172 employe es, was generated. Based on the final class list, the trial c ourt entered an amended class certification
order that defined the class as follows:
“The Class to be certified is defined as: All California PRODUCTION EMPLOYEES who performed work for [Y ellowpages.com, LLC’s predecessor] from February 2004 to Ju ly 2005 and/or perfo rmed work for Yellowp ages.com, Inc. from January 2005 to the present who were designated as exempt at any time within four years of the date of the filing of this complain t. [¶] PRODUCTION EMPLOYEES are defined as: all employees who produced, created, genera ted, crafted, refined, tested, contributed to, or built the electronic products in California for defendants . . . w ho are not: [¶] “1. paid on a commission basis; or [¶] 2. comput er programmers; or [¶] 3. in one of the ‘recognized professions’ of Wage Order 4-2—1, section 1(A)(3); or [¶] 4. Those who supervise two or more other employees and have a monthly salary twice California’s7 minimum wage for full-time employment; and who have or formerly had one or more of the following job titles: Senior Product Manager, Product Ma nager, Director Product Management, Associate Director Product Management, A ssociate Director Operations Delivery, Program Manager, Senior Human Factors En gineer, Channel Manager, Art Director, Director Product Strategy, Senior Write r, Editor, Lead Program Manager, Senior Information Architect, Director Earn Per Call Products, Director YP Clicks, Lead Project Manager, Manager Display Products, Pro duct Campaign Manager, Senior Copy Writer,
and Senior Editor.” In March 2013, Yellow Pages filed a motio n to decertify the class. Plaintiff
thereafter filed a motion for su mmary adjudication of Yellow Pages’s affirmative defense that the class members were all properly cla ssified as exempt. Plaintiff also filed a
motion to amend the class definition to excl ude four of the 21 job titles on which the
class definition was based. In May 2013, the trial c ourt issued a tentative ruling granting Yellow Pages’s motion to decertify, denying plai ntiff’s motion to amend the cl ass definition, and taking plaintiff’s motion for summary adjudication off calendar. Following a hearing on the motions, the trial court adopted its tentative ru ling as the ruling of the court and directed Yellow Pages to prepare formal orders in acc ordance with its ruling. Plaintiff filed a timely notice of appeal from the orders dece rtifying the class and denying the motion to
amend the class definition.

DISCUSSION

A. Standard of Review Our Supreme Court has outlin ed the class action procedur e as follows: “Code of
Civil Procedure section 382 authorizes cla ss actions ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the c ourt . . . .’ (Code Civ. Proc., § 382.) A trial8 court is generally afforded gr eat latitude in granting or denyi ng class certification, and we normally review a ruling on certificati on for an abuse of discretion. ( Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326- 327 [17 Cal.Rptr.3d 906, 96 P.3d 194] ( Sav-On Drug Stores ).) We do not apply this defere ntial standard of review if
the trial court has evaluated class certifica tion using improper criteria or an incorrect legal analysis: ‘[A] trial c ourt ruling supported by substan tial evidence generally will not be disturbed “unless (1) improper criteria we re used [citation]; or (2) erroneous legal assumptions were made . . . .”’ ( Linder v. Thrifty Oil Co . (2000) 23 Cal.4th 429, 435-436 [97 Cal.Rptr.2d 17 9, 2 P.3d 27] ( Linder ); accord, Gattuso v. Harte-Hanks Shoppers, Inc

. (2007) 42 Cal.4th 554, 575-576 [ 67 Cal.Rptr.3d 468, 169 P.3d 889]; Sav-On Drug Stores,

supra , 34 Cal.4th at pp. 326-327; see Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 828-82 9 [97 Cal.Rptr.2d 226] [‘[i]f the tr ial court failed to follow the correct legal analysis when de ciding whether to certify a class action, “an appellate court is required to reverse . . . ‘even though ther e may be substantial evidence to support the court’s order’”’].) The reviewing court ‘m ust examine the trial court’s reasons for denying class certification.’ ( Linder, supra , 23 Cal.4th at p. 436.) When reviewing an order denying class certification, appellate co urts ‘consider only the reasons cited by the trial court for the denial, and ignore other reasons that might support denial.’ ( Bufil v. Dollar Financial Group, Inc . (2008) 162 Cal.App.4th 1193, 1205 [76 Cal.Rptr.3d 804].)” ( Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4t h 1286, 1297-1298.)

B. Legal Principles

1. Class Action Procedure Our Supreme Court has said, “Drawing on the language of Code of Civil
Procedure section 382 and federal precedent, we have ar ticulated clear requirements for the certification of a class. The party advo cating class treatment must demonstrate the
existence of an ascertainable and sufficiently numerous cla ss, a well-defined community of interest, and substantial benefits from ce rtification that render proceeding as a class9 superior to the alternatives. (Code Civ. Proc., § 382; Fireside Bank [ v. Superior Court (2007) 40 Cal.4th 1069,] 1089 ( Fireside Bank ); Linder [, supra, ] 23 Cal.4th [at p.] 435 [97 Cal.Rptr.2d 179, 2 P.3d 27]; City of San Jose [ v. Superior Court (1974) 12 Cal.3d 442], 459.) ‘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.”’ ( Fireside Bank , at p. 1089, quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [ 174 Cal.Rptr. 515, 629 P.2d 23].)” ( Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 ( Brinker ).) The Supreme Court has observed that th e class action procedure is based on equitable principles. “‘The class action is a product of the court of equity—codified in
section 382 of the Code of Civil Procedure. It rests on considera tions of necessity and convenience, adopted to prevent a failure of justice.’” ( Fireside Bank
, supra, 40 Cal.4th at p. 1078) “‘The certification question is “e ssentially a procedural one that does not ask whether an action is legally or factually merito rious.” [Citation.] A trial court ruling on a
certification motion determines “whether . . . th e 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 a dvantageous to the judicial process and to the litigants.” [Citations.]’ ( Sav-On Drug Stores, supra , 34 Cal.4th at p. 326.)” ( Lopez
v. Brown (2013) 217 Cal.App.4th 1114, 1126.)

2. Wage and Hour Rules While this matter was being litigated in the trial court, the California Supreme Court issued an opinion in Harris v. Superior Court (2011) 53 Cal.4th 170 ( Harris ), which opinion explained in deta il the “administrative exemption” that was at issue in the trial court on Yellow Pages’s motion to decertify. The issue in Harris was whether,10 under newly promulgate d Wage Order 4-2001, 1 the Court of Appeal had properly applied the administrative exemption by using the so-called “administ rative /production worker dichotomy 2 ” test. The court began its analysis by reviewing the historical background of

1 Wage Order 4-2001, which is codified in Title 8 of the California Code of Regulations section 11040, provid es in pertinent part: “1. A pplicability of Order[.] This order shall apply to all persons employed in pr ofessional, technical, clerical, mechanical, and similar occupations whether paid on a time , piece rate, commission, or other basis, except that: [¶] (A) Provisions of secti ons 3 through 12 [(governing, e.g., hours and days of work, minimum wages a nd rest periods)] shall not a pply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee' s duties meet the test to qualify for an exemption from those sections: (1) Execu tive Exemption . . . [¶ ] . . . [¶] (2) Administrative Exemption[.] A person employe d in an administrative capacity means any employee: (a) Whose duties and re sponsibilities involve either: (I) The performance of office or non-manual work di rectly related to management policies or general business operations of hi s/her employer or his employe r's customers; or (II) the performance of functions in the administration of a school system . . . ; and (b) Who customarily and regularly exercises discreti on and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capac ity (as such terms are defined for purposes of this section); or (d) Who performs under only gene ral supervision work along specialized or technical lines requiring special training, experi ence, or knowledge; or (e) Who executes under only general supervision special assignm ents and tasks; and (f) Who is primarily engaged in duties that meet the test of th e exemption. The activities constituting exempt work and non-exempt work shall be constr ued in the same manner as such terms are construed in the following regu lations under the Fair Labor St andards Act effective as of the date of this order: 29 C.F.R. Sec tions 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall include, for exam ple, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be ex amined and the amount of time the employee spends on such work, together with the employ er's realistic expectations and the realistic requirements of the job, shall be consid ered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two . . . times the state mi nimum wage for full-time employment. . . .”

2 “In basic terms, the administrative/pr oduction worker dic hotomy distinguishes between administrative employees who are pr imarily engaged in ‘“administering the business affairs of the enterprise”’ and pr oduction-level employees whose ‘“primary duty is producing the commodity or commodities, whether goods or services, that the11 Wage Order 4-2001. It said , “[In 1999,] the Legislatur e passed the ‘Eight-Hour-Day Restoration and Workplace Flexibility Act of 1 999.’ (Stats. 1999, ch. 134, § 1, p. 1820, adding and amending provisions of Lab. Code , § 500 et seq.) The act amended Labor Code section 510, whic h provides that a California empl oyee is entitled to overtime pay for work in excess of eight hou rs in one workday or 40 hour s in one week. (Lab. Code, § 510, subd. (a).) However, Labor Code sec tion 515, subdivision (a), added by the act, exempts from overtime compensation ‘execu tive, administrative, and professional employees’ whose primary duties (footnote om itted) ‘meet the test of the exemption,’ who ‘regularly exercise[] discretion and i ndependent judgment in performing those duties’ and who earn a monthly salary at leas t twice the state minimum wage for full-time employees. (Lab. Code, § 515, subd. (a).) [¶ ] Under the statute then, to qualify as ‘administrative,’ employees must (1) be paid at a certain level, (2) their work must be administrative, (3) their primary duties must involve that administ rative work, and (4) they must discharge those primary duties by regularly exercising independent judgment and discretion.” ( Harris, supra , 53 Cal.4th at pp. 177-178.)
The court in Harris, supra , 53 Cal.4th 170, next desc ribed the interplay between state and federal law in interpreting and appl ying the administrative ex emption. “Like its predecessor, Wage Order 4-2001 exempts ‘persons employed in administrative, executive, or professional capaci ties.’ (Wage Order 4-2001, subd. 1(A).) Unlike its predecessor, subdivision 1(A)(2) of the new wage order describes the administrative exemption in some detail. It provides, in part, that persons are employed in an administrative capacity if their duties and responsibilities involve office or nonmanual
work ‘ directly related to management policie s or general business operations of [ their ] employer or [ the ] employer ’ s customers.’ (Wage Order 4-2001, subd. 1(A)(2)(a)(i), italics added.) [¶] Federal Regulations fo rmer part 541.205 (2000) is one of the regulations incorporated in Wage Order 4-2001, subd ivision 1(A)(2)(f). (Footnote omitted.) That regulation defined the italicized phrase above. It is this ‘directly related’

enterprise exists to produce and market.” [Citation.]’” ( Harris, supra , 53 Cal.4th at p. 183.)12 phrase that distinguishes between ‘administra tive operations’ and ‘production’ or ‘sales’ work. (Fed. Regs. § 541.205(a) (2000).) [¶ ] Parsing the language of the regulation reveals that work qualifies as ‘administrative when it is ‘ directly related’ to management policies or general business operations. Work qu alifies as ‘directly related’ if it satisfies two components. First, it must be qualitatively administrative. Second, quantitatively , it must be of substantial importance to the mana gement or operations of the business. Both components must be satisfied before work can be considered ‘directly related’ to management policies or general business opera tions in order to meet the test of the exemption. (Fed. Regs. § 5 41.205(a) (2000).) [¶] The regulation goes on to further explicate both components. Federal Regulations former part 541.205(b) (2000) discusses the qualitative requirement that th e work must be administrative in nature. It explains that administrative operations include work done by ‘white collar’ employees engaged in servicing a business. Such servicing may in clude, . . . advising management, planning, negotiating, and representing the company. Federal Regulations former part 541.205(c) (2000) relates to the quantitativ e component that tests whethe r work is of ‘substantial importance’ to management policy or general bus iness operations. [¶] Read together, the applicable Labor Code statut es, wage orders, and incorpor ated federal regulations now provide an explicit and ex tensive framework for anal yzing the administrative exemption.” ( Harris, supra , 53 Cal.4th at pp. 180-182.)
The court in Harris, supra , 53 Cal.4th 170 then examined whether the appropriate wage and hour principl es had been applied correctly by th e Court of Appeal in that case, including whether that court’s use of the “administrative/productio n worker dichotomy” test was appropriate in light of newly pr omulgated Wage Order 4-2001. The court concluded that “the Court of Appeal impr operly applied the administrative/production worker dichotomy as a dispositive test. [¶] The essenc e of our holding is that, in resolving whether work qua lifies as administrative, courts must consider the particular facts before them and appl y the language of the statutes and wage orders at issue .” ( Id

. at p. 190, italics added.) The court in Harris , however, qualified its holding by stating13 that “[w]e do not hold that th e administrative/production work er dichotomy . . . can never be used as an analytical tool.” ( Ibid .)

C. Commonality Analysis In ruling on Yellow Pages’s motion to dece rtify, the trial court concluded that common issues did not predominate over th ose which could be determined on a classwide basis. According to the trial court, “the class of 21 job titles (or even plaintiff’s revised list of only 17 job title s) raises individualized job-specific and person-specific factual issues necessary to determining whet her or not there is liability on the various
elements of the administrativ e exemption. The class incl udes a wide variety of skills necessary for the creation and formulation of new commercially useful intellectual property, including effective visual presenta tion of potential customer content, data analysis for search optimization for custom er (advertiser) efficient use of scarce advertising dollars, product de sign to avoid user (customer) frustration, analysis of product performance, market research, strate gic planning for defendants’ own business advantage and a whole host of dissimilar dutie s. While defendants appear to have persuasive arguments factually that many of these specific jobs involve matters of substantial importance to defendants’ own busine ss, to the business of its customers or to both, the analysis is necessarily job-specific and often person-specif ic.” As explained below, based on the evidence in the record on the motion to decertify, we conclude that the trial court, applying the correct lega l standard, did not abuse its discretion in determining that common factual issues did not predominate. “‘A class may be certified when common que stions of law and fact predominate over individualized questions. As a general rule if the defendant’s liability can be determined by facts common to a ll members of the class, a clas s will be certified even if the members must individually prove their damages. . . . [T]o determine whether common questions of fact predominate the tr ial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.’ ( Hicks v. Kaufman & Broad Home Corp . (2001) 89 Cal.App.4th 908, 916 [107 Cal.Rptr.2d 761], fns.14 omitted.) A class action ‘“will no t be permitted . . . where there are diverse factual issues to be resolved, even tho ugh there may be many common questions of law.”’ ( Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 542 [76 Cal.Rptr. 2d 567].) ‘“The burden is on the party seeking certificati on to establish the existence of both an ascertainable class and a well-defined community of interest among the class members.”’ ( Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104 [131 Cal.Rptr.2d 1, 63 P.3d 913][( Lockheed )].)” ( Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1347.) In examining whether common issues of law or fact predominate, we must consider the pl aintiff’s legal theory of liability ( Sav-On Drug Stores, supra , 34 Cal.4th at pp. 326-327), any affirm ative defenses that may defeat class certification by raising issues specific to each potential class member, and whether the issues presented by that defense predominate over common issues. ( Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App. 4th 1440, 1450.) In reviewing a trial court’s determinati on on the commonality el ement, “‘we must
consider whether the record contains substa ntial evidence to support the trial court’s predominance finding, as a certification ru ling not supported by substantial evidence cannot stand.’ ( Lockheed
, supra , 29 Cal.4th at p. 1106.) Bu t, ‘[w]here a certification
order turns on inferences to be drawn from the facts, “‘the reviewing court has no authority to substitute its decision fo r that of the trial court.’”’ ( Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4t h 1282, 1287 [119 Cal.Rptr.2d 190]; accord, Walker v. Superior Court (1991) 53 Cal.3d 257, 272 [279 Cal.Rptr. 576, 807 P.2d 418].)” ( Sav-On, supra 34 Cal.4th at p. 328.) Plaintiff argues that the trial court erred when it decertified the class. According to plaintiff, because the trial court ig nored her factual s ubmissions and made impermissible merits-based determinations at the class certification stage, it applied an incorrect legal standard to the certification ques tion before it. Plaintiff also contends that there was an overriding comm on issue of law that warranted class treatment of her claims—i.e., whether production workers can ev er be exempt under state wage and hour
laws.15 Contrary to plaintiff’s assertion, th e trial court did not make merits-based determinations or ignore plain tiff’s evidence in making its decertification decision. Rather, it was plaintiff who made merits-bas ed submissions and arguments in opposing the decertification motion. According to plain tiff, her evidence established, as a factual matter, that all of the worker s in the various job titles embra ced within the class definition were production workers, notwithstanding Ye llow Pages’s substantia l evidence to the contrary. Plaintiff’s merits-based assertion ig nores the essential question framed by plaintiff’s class definiti on and Yellow Pages’s affirm ative defense based on the administrative exemption—whether the clas s members’ status as alleged production
workers could be determined on a classwide basis using common proof. In ruling on the decertification motion, the trial court conc luded, based on the parties’ respective evidentiary submissions, that the Yellow Pa ges’s liability to the class could not be adjudicated on a classwide basis using proof common to each class member because, under the fact-based analysis required under Harris , supra, 53 Cal.4th 170, the determination of a given class member’s ex empt status would require individualized proof. Although plaintiff presente d conclusory evidence that the class members were primarily engaged in “production” work, Ye llow Pages presented specific and substantial evidence to the contrary, evid ence from which the trial court could have reasonably concluded that individual factual issues pred ominated over those that could be resolved
on a classwide basis. As the declarations submitted by Yellow Page s demonstrated, the products on which the class memb ers worked were not the actu al advertisements sold to businesses—i.e., the commodity that the enterprise existed to produce and market—but rather were the technological tools used by the sales employees who sold the advertising
and who had been classified as nonexempt. In addition, th at evidence showed that many of the class members did not directly work on those technological tools, but instead spent time on other unrelated tasks, such as develo ping contests and incentives for sales staff, developing pricing for the adve rtising units, and analyzing sa les and performance. That16 evidence was sufficient to support the trial court’s conclusi on that individualized proof on a job-by-job or employee-by-employee basis would be necessary to determine whether a given class member was a production worker or an administrative worker. Because the trial court’s findings on the commonality element were supported by substantial evidence, we have no authorit y to substitute our decision for that of the trial court. Instead, we must affirm the order decertifyi ng the class because plaintiff has failed to
demonstrate that the trial court abused its discretion in making that order. In reaching this conclusion, we reject plaintiff’s assertion that there was an overriding common legal issue concerning whether production workers can ever be exempt from state wage and hour requirement s. As noted above, that issue assumes a
fact that was not and could not have been decided at the class certification stage—
whether some or all of the cl ass members were misclassifie d as exempt when, in fact, they were nonexempt production workers. T hus, the issue as framed by plaintiff could only be common to all class members if and wh en a finder of fact made a preliminary
determination that some or all of the cl ass members were production workers under Wage Order 4-2001. Given that no such liability-determi native finding was or could have been made, the issue fra med by plaintiff merely begged the central factual question concerning Yellow Pages’s li ability to the class and ther efore did not justify class
certification under Brinker, supra, 53 Cal.4th 1004 or the Court of Appeal decisions
decided after Brinker upon which plaintiff relies
For the first time in either the trial court or on appeal, plaintiff argues in her reply brief that the trial court impermissibly shif ted the burden of proof on the decertification motion and ignored Yellow Pages’s failure to submit evidence on the criteria set forth in
Eicher v. Advanced Bu siness Integrators, Inc . (2007) 151 Cal.Ap p.4th 1363, 1371— whether the employee performs management func tions or is involved in general business operations, customarily exercises discretion and independent judgment, does specialized work under general supervision, meets the ex emption at least 50 percent of the time, and
earns more than twice the minimum wage. Because plai ntiff failed to raise this
contention in either the trial court or in her opening brie f, she has either forfeited it on17 appeal or otherwise improperly raised it in her reply. ( Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 [forfeiture]; Rose v. Bank of America, N.A . (2013) 57 Cal.4th 390, 399, fn. 9 [matters improperly raised in reply brief need not be addressed].) Moreover, as set forth above, Yellow Pages submitted declar ation testimony on most, if not all, of the
elements of the administrativ e exemption, evidence from which the trial court reasonably concluded that the issues to be tried separate ly predominated over the issues that could be resolved using proof common to each class membe r. On the commonality issue, Yellow Pages was not required at the certification stag e to meet its burden of proof on all of the
elements of the administrative exemption as plaintiff now bela tedly contends. Instead, it was required to show only that the factua l issues subject to common proof did not predominate over those to be tried separately . The trial court found that Yellow Pages had made the required showing, and substa ntial evidence supported that finding.

D. Motion to Amen d Class Definition
Plaintiff contends that the trial court abused its discretion when it denied her
motion for leave to amend the class defin ition by eliminating four of the 21 job titles
embraced within the class defin ition. Yellow Pages counters that the order denying leave to amend is a nonappealable order and that, in any event, plaintiff has failed to show either an abuse of discretion or prejudi ce from the order denying leave to amend. Assuming, without deciding , that the order denying leave to amend is appealable because it affects the appealab le decertification order, we conclude that plaintiff has
failed to demonstrate that she was prejudiced by the order. ( Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 13 36, 1352 [“‘[i]t is the appellant’s burden to affirmatively demonstrate reversible error.’ ( California Pines Property Owners Assn. v.
Pedotti (2012) 206 Cal.App.4t h 384, 392 [141 Cal. Rptr.3d 793].) ‘“No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party.” [Citation.] Accordingly, e rrors in civil trials re quire that we examine ‘each individual case to determine whether pr ejudice actually occurred in light of the18 entire record.”’ ( Cassim v. Allstate Ins. Co . (2004) 33 Cal.4th 780, 801-802 [16 Cal.Rptr.3d 374, 94 P.3d 513] .)”].) In its ruli ng on the decertification order, the trial court ruled that the class list of 21 job titles “or even plaintiff’s revised list of only 17 job titles,” raised individualized factual issues co ncerning whether class members were administratively exempt. Based on that fi nding, it is clear that the outcome on the
decertification motion would have been the same even if the trial court had allowed plaintiff to reduce the number of job titles in the class definiti on to 17. Because plaintiff’s appeal from the order denying leave to amend does not explain how she would have obtained a differe nt outcome in light of the trial court’s finding concerning the proposed class with 17 job titles, she has failed to demonstrate the prejudice required to reverse the order denyi ng leave to amend the class definition.

DISPOSITION

The orders decertifying the class and de nying plaintiff leave to amend the class
definition are affirmed. Yellow Pa ges is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.