Filed 7/22/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SAFEWAY, INC. et al., 

Petitioners,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

ENRIQUE ESPARZA et al.,

Real Parties in Interest.

 B255216

 (Los Angeles County

 Super. Ct. No. BC487830)

 

 

ORIGINAL PROCEEDINGS in mandate. John Shepard Wiley, Judge. 

Petition denied.

Payne & Fears, James L. Payne, Eric C. Sohlgren, Jeffrey K. Brown and 

Andrew K. Haeffele for Petitioners.

Arias Ozzello & Gignac, Mike Arias, Makael H. Stahle and Alfredo Torrijos 

for Real Parties In Interest.
2

In the underlying action, real parties in interest asserted putative class 

claims against petitioners Safeway Inc. (Safeway) and The Vons Companies 

(Vons) for violations of the Labor Code and the unfair competition law (UCL) 

(Bus. & Prof. Code, § 17200 et seq.). The trial court certified a class for purposes 

of the UCL claim based on the theory that petitioners had a practice of never

paying premium wages for missed meal breaks when required (Lab. Code, 

§ 226.7). Petitioners seek a writ directing the trial court to vacate the grant of 

certification and to enter a new order denying certification. We deny the petition 

for writ of mandate.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In 2007, the initial class action complaint was filed in the underlying action. 

In February 2009, real parties Enrique Esparza, Cathy Burns, Sylvia Vezaldenos, 

and Levon Thaxton II filed their second amended complaint, asserting claims for 

failure to provide meal and rest breaks (Lab. Code, §§ 226.7, 512), failure to 

provide itemized pay statements (Lab. Code, § 226), unfair business practices 

under the UCL, and penalties under the Labor Code Private Attorneys General Act 

of 2004 (PAGA) (Lab. Code, § 2698 et seq.). The complaint alleged that 

petitioners failed to provide meal and rest breaks, and failed to pay compensation 

for those missed breaks. 

In January 2013, real parties filed a motion for class certification of their 

claims for failure to provide meal and rest breaks, unfair business practices, and 

PAGA penalties. They proposed two classes, namely, the “[m]eal [b]reak [c]lass,” 

composed of over 200,000 employees who worked for petitioners between 

December 28, 2001 and June 17, 2007, and the “[r]eceiver [r]est [b]reak 

[s]ubclass,” composed of all such employees who worked as receivers after 
3

December 28, 2001. In connection with the meal break class, real parties sought 

class certification of the UCL claim, arguing that prior to June 17, 2007, 

petitioners had a policy of never paying the meal break premium wages set forth in 

Labor Code section 226.7 “under any circumstances,” and that the policy 

constituted an unlawful or unfair business practice under the UCL. 

On February 6, 2014, the trial court granted the motion with respect to the 

meal break class, and otherwise denied the motion. On March 28, 2014, 

petitioners filed their petition for writ of mandate. We issued an order to show 

cause on February 26, 2015.

DISCUSSION

Petitioners contend the trial court erred in granting class certification with 

respect to the meal break class. For the reasons discussed below, we disagree.1

A. Standard of Review

“Code of Civil Procedure section 382 authorizes class action suits in 

California ‘when the question is one of a common or general interest, of many 

persons, or when the parties are numerous, and it is impracticable to bring them all 

before the court . . . .’ The party seeking certification as a class representative 

must establish the existence of an ascertainable class and a well-defined 

community of interest among the class members. [Citation.] 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; 

1

In certifying the meal break class, the trial court did not expressly refer to real 

parties’ claims under the Labor Code, the UCL, or PAGA. Before us, petitioners 

challenge the ruling only insofar as it relates to the UCL claim.
4

and (3) class representatives who can adequately represent the class. [Citation.]” 

(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)

When “[p]resented with a class certification motion, a trial court must 

examine the plaintiff’s theory of recovery, assess the nature of the legal and 

factual disputes likely to be presented, and decide whether individual or common 

issues predominate. To the extent the propriety of certification depends upon 

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

resolve them. . . . [H]owever, a court generally should eschew resolution of such 

issues unless necessary. [Citation.] Consequently, a trial court does not abuse its 

discretion if it certifies (or denies certification of) a class without deciding one or 

more issues affecting the nature of a given element if resolution of such issues 

would affect the ultimate certification decision.” (Brinker Restaurant Corp. v. 

Superior Court (2012) 53 Cal.4th 1004, 1025 (Brinker).)

“On review of a class certification order, an appellate court’s inquiry is 

narrowly circumscribed. ‘The decision to certify a class rests squarely within the 

discretion of the trial court, and we afford that decision great deference on appeal, 

reversing only for a manifest abuse of discretion . . . . A certification order 

generally will not be disturbed unless (1) it is unsupported by substantial evidence, 

(2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.

[Citations.]’ [Citations.] Predominance is a factual question; accordingly, the trial 

court’s finding that common issues predominate generally is reviewed for 

substantial evidence. [Citation.]” (Brinker, supra, 53 Cal.4th at p. 1022, quoting 

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

Petitioners challenge the class certification on several grounds, including 

the legal viability of real parties’ theory of recovery under the UCL. However, 

because certification is not “conditioned upon a showing that class claims for 
5

relief are likely to prevail,” an inquiry into the merits of a claim is ordinarily 

appropriate only when that question is “enmeshed with class action requirements, 

such as whether substantially similar questions are common to the class and 

predominate over individual questions or whether the claims or defenses of the 

representative plaintiffs are typical of class claims or defenses.” (Linder v. Thrifty 

Oil Co. (2000) 23 Cal.4th 429, 443.) Thus, defendants are generally not entitled to 

a merits determination in the context of a ruling on class certification. (Ibid.) 

Nonetheless, that determination may be proper when the defendants cannot attack 

the claim by demurrer or summary judgment following certification, or the parties 

jointly request a merits determination. (Id. at p. 443.) 

Here, petitioners did not establish those special circumstances before the 

trial court, which made no merits determination. In this writ proceeding, real 

parties have responded to petitioners’ challenges to their theory of recovery under 

the UCL, but have not requested a merits determination. We therefore limit our 

examination of the merits of real parties’ theory of recovery to those issues related 

to class action requirements.

B. Governing Principles

We begin by discussing the principles applicable to real parties’ theory of 

recovery under the UCL. Generally, the UCL defines “unfair competition” 

broadly to include “any unlawful, unfair or fraudulent business act or practice.”

(Bus. & Prof. Code, § 17200.) “By proscribing ‘any unlawful’ business practice, 

‘[the UCL] “borrows” violations of other laws and treats them as unlawful 

practices’ that the unfair competition law makes independently actionable. [¶]

However, the law does more than just borrow. The statutory language referring to 

“any unlawful, unfair or fraudulent” practice (italics added) makes clear that a 
6

practice may be deemed unfair even if not specifically proscribed by some other 

law.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone 

Co. (1999) 20 Cal.4th 163, 180 (Cel-Tech).) Under the UCL, damages cannot be 

recovered, and plaintiffs are generally limited to restitution and injunctive relief. 

(Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) 

Real parties’ theory of recovery under the UCL focuses on the additional 

compensation afforded employees under the Labor Code for failure to provide 

meal breaks.

2

Section 512 obliges employers to provide 30-minute meal periods

within a work break at specified intervals absent special circumstances, that is, 

unless the employee waives or agrees to modify that requirement, or an exception 

to the requirement is set forth in an applicable wage order issued by the Industrial 

Welfare Commission (IWC). (§ 512, subds. (a), (b).) Under section 512, “an 

employer’s obligation is to provide a first meal period after no more than five 

hours of work and a second meal period after no more than 10 hours of work.” 

(Brinker, supra, 53 Cal.4th at p. 1049.) That obligation reflects the requirements 

generally stated in the IWC wage orders. (Brinker, supra, at pp. 1046-1049.) 

As explained in Brinker, to comply with the obligation, the employer must 

afford an “off-duty” meal break, absent an employee waiver or agreement. 

(Brinker, supra, 53 Cal.4th at p. 1039.) The employer properly provides an offduty break “if it relieves its employees of all duty, relinquishes control over their

activities and permits them a reasonable opportunity to take an uninterrupted 30-

minute break, and does not impede or discourage them from doing so.” (Id. at 

p. 1040.) Thus, the employer “may not undermine a formal policy of providing 

2 All further statutory citations are to the Labor Code, unless otherwise indicated.
7

meal breaks by pressuring [its] employees to perform their duties in ways that omit 

breaks.” (Ibid.)

Nonetheless, an employee is not obliged to police the breaks or ensure that 

no work is performed during them. (Brinker, supra, 53 Cal.4th at p. 1040.) Work 

by an employee during a break does not, by itself, breach the employer’s

obligation to provide the break. (Ibid.) Nor does “[p]roof an employer had 

knowledge of employees working through meal periods . . . .” (Ibid.) 

When an employer fails to discharge its duty regarding meal breaks, section 

226.7 requires the employer to compensate employees with “premium” pay 

(Brinker, supra, 53 Cal.4th at p. 1039.) That statute provides: “(b) An employer 

shall not require any employee to work during any meal or rest period mandated 

pursuant to an applicable . . . order of the Industrial Welfare Commission. . . . [¶] 

(c) If an employer fails to provide an employee a meal . . . period in accordance 

with a[n] . . . applicable order of the [IWC] order . . . , the employer shall pay the 

employee one additional hour of pay at the employee’s regular rate of 

compensation for each workday that the meal . . . period is not provided.”

In Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102-

1111 (Murphy), our Supreme Court determined that the additional compensation 

established in section 226.7 is a “premium wage,” not a penalty. There, an 

employee successfully asserted certain wage-related claims before the Labor 

Commissioner.

3

(Murphy, supra, 40 Cal.4th at pp. 1100-1101.) After the 

employer sought de novo review of the ruling, the trial court permitted the 

3 Employees may recover unpaid wages and penalties in administrative proceedings 

before the Labor Commissioner. (Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 

942, 946 (Post); § 98.) The Labor Commissioner’s ruling is subject to de novo review in 

superior court. (Post, supra, 23 Cal.4th at pp. 947-948; § 98.2.)
8

employee to supplement his claims with a claim under section 226.7, and issued an 

award that included payment for missed meal and rest breaks. (Murphy, supra, 40 

Cal.4th at p. 1101.) Before the Supreme Court, the employer contended that the 

“‘additional hour of pay’” specified in section 226.7 constituted a penalty, and 

thus that the employee’s claim was subject to the one-year limitations period

applicable to penalties (Code. Civ. Proc., § 340, subd. (a)), rather than the threeyear limitations period applicable to “a liability created by statute” (Code Civ. 

Proc., § 338, subd. (a)). (Murphy, supra, at p. 1102.) In rejecting that contention,

the Supreme Court concluded that the additional pay set forth in section 226.7 is a 

“dual-purpose” remedy intended primarily to compensate employees, and 

secondarily to shape employer conduct. (Murphy, supra, at pp. 1110-1111.) The 

court stated: “[A]n employee is entitled to the additional hour of pay immediately 

upon being forced to miss a rest or meal period. In that way, a payment owed 

pursuant to [Labor Code] section 226.7 is akin to an employee’s immediate 

entitlement to payment of wages or for overtime.” (Id. at p. 1108.) 

In Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256-1257

(Kirby), the Supreme Court held although the remedy set forth in section 226.7 is 

properly characterized as a wage, an employer’s failure to pay that wage “does not 

form part of a section 226.7 violation . . . .” There, two employees asserted claims 

against their employers in superior court under the Labor Code and the UCL, 

including a claim under section 226.7 predicated on a failure to provide rest 

breaks.4(Kirby, supra, 53 Cal.4th at pp. 1248-1249.) After the employees entered 

into a settlement regarding the section 226.7 claim, one of the employers secured a 

4

In addition to presenting claims based on labor law violations before the Labor 

Commissioner, employees may assert such claims in civil actions. (Post, supra, 23 

Cal.4th at p. 946.) 
9

fee award under section 218.5, which authorizes an award to the prevailing party 

“‘[i]n any action brought for the nonpayment of wages . . . .’” (Kirby, supra, at 

pp. 1248-1249.) 

In reversing the award, the Supreme Court concluded that notwithstanding 

Murphy, a claim under section 226.7 is not an “action brought for the nonpayment 

of wages,” within the meaning of section 218.5 (italics added). (Kirby, supra, 53 

Cal.4th at pp. 1256-1257.) The court determined that the term “‘nonpayment of 

wages,’” in the context of the phrase “‘action brought for the nonpayment of 

wages,’” identifies an alleged legal violation, not a remedy, as it would be absurd 

to bring an action to obtain the nonpayment of wages. (Id. at p. 1256.) The court 

further determined that the sole legal violation specified in section 226.7 is the 

failure to provide meal and rest breaks, stating: “Nonpayment of wages is not the 

gravamen of a section 226.7 violation. Instead, subdivision (a) of section 226.7 

defines a legal violation solely by reference to an employer’s obligation to provide 

meal and rest breaks. [Citation.] The ‘additional hour of pay’ provided for in 

subdivision (b) is the legal remedy for a violation of subdivision (a), but whether 

or not it has been paid is irrelevant to whether section 226.7 was violated. . . . The 

failure to provide required meal and rest breaks is what triggers a violation of 

section 226.7. Accordingly, a section 226.7 claim is not an action brought for 

nonpayment of wages; it is an action brought for non provision of meal or rest 

breaks.” (Kirby, supra, at pp. 1256-1257, italics added.) That reading of section 

218.5, the court explained, comports with Murphy: “To say that a section 226.7 

remedy is a wage . . . is not to say that the legal violation triggering the remedy is 

nonpayment of wages.” (Id. at p. 1257.) 
10

C. Underlying Proceedings 

1. Motion for Class Certification

Real parties sought class certification for the meal break class, which 

encompasses over 200,000 store-level hourly employees who worked for 

petitioners’ Vons and NorCal divisions in California between December 28, 2001 

and June 17, 2007. In support of class certification, they contended that 

petitioners’ policy “of not paying meal break premiums under any circumstances” 

to those employees during the specified break constituted both an “‘unlawful’” 

and an “‘unfair’” business practice under the UCL. Real parties argued that the 

policy was unlawful because it contravened section 226.7 and was otherwise 

unfair. Real parties maintained that their theory of liability was suitable for class 

treatment, that the class was ascertainable on the basis of petitioners’ employment 

records, and their own claims were typical of the class members. 

To support class certification, real parties submitted excerpts from the 

depositions of some of petitioners’ managers, together with real parties’ own 

declarations and deposition testimony, and a declaration from accounting expert 

Eric R. Lietzow. According to real parties’ showing, prior to June 17, 2007, 

petitioners used time-keeping systems to monitor when employees began and 

ended work, as well when they took meal breaks. Terri Buller, a Vons human 

resources manager, testified that prior to June 2007, there was no mechanism or 

procedure by which the premium pay related to meal breaks was calculated or 

determined when due. Michael Scizak, a Safeway director, and Jefferey Mason, 

the NorCal division’s human resources director, testified that prior to June 2007, 

employees were paid only the meal break pay required by union contracts. Buller,

Scizak, and Mason further testified that after June 2007, petitioners implemented a 

time-keeping system that detected missed, shortened, or late meal breaks, and 
11

began to make virtually automatic payments of premium wages for such meal 

breaks, following managerial review of the system’s reports. 

Real parties stated that they worked as store-level hourly employees 

between December 28, 2001 and June 17, 2007, and that on many occasions, they

were directed to work through meal breaks, or otherwise were unable to take the 

breaks due to heavy workloads. According to Lietzow, following a review of real 

parties’ payroll records, he found no payments to real parties prior to June 2007 

under the “earning codes” petitioners used to document wage payments pursuant 

to section 226.7. 

Lietzow also stated that he had examined “time punch data” and payroll

records for the pertinent break from a random sample of petitioners’ stores. 

Lietzow reviewed the time punch data for what he called “meal break violations”

under section 226.7, that is, instances in which the data for an employee on a 

particular day did not show that the employee had taken a 30-minute break within 

the first five hours of work, thus reflecting a missed, shortened, or delayed break. 

Extrapolating from the data for the sample, Lieztow estimated that petitioners’ full 

records would reveal 27,095,927 such violations between December 28, 2001 and 

June 17, 2007. Lietzow further stated that his review of the payroll records 

disclosed no payments under the earning codes reflecting section 226.7 wages. He 

thus opined that petitioners made no such payments to employees prior to June 17, 

2007.

2. Opposition

Petitioners opposed class certification on several grounds. They contended 

no liability could be imposed under real parties’ theory, which petitioners 

characterized as relying on an alleged policy of “not automatically paying meal 
12

break premiums.” Petitioners argued that any such practice is not itself unlawful, 

noting that under Kirby, the failure to provide premium pay “does not form part of 

a section 226.7 violation” (Kirby, supra, 53 Cal.4th at p. 1256). Petitioners stated: 

“Where the underlying statutory claim fails, then the UCL claim likewise fails.” 

Petitioners further contended the theory of liability improperly presupposed 

that they had contravened the statutory duty to provide meal breaks. Relying on 

Brinker, they argued: “If an employer provides lawful meal periods, it has no 

obligation to pay meal break premiums. [Citation.] This is true even if an 

employee chooses not to take his or her meal period.” (Underlining deleted.) 

Petitioners maintained there was “overwhelming evidence that [the] putative class 

members have been provided lawful meal periods.” To support that contention, 

they submitted more than 2,000 declarations from putative class members and 31 

declarations for store managers. Petitioners also submitted a declaration from 

economist G. Michael Phillips, who stated that he had reviewed the declarations. 

Phillips opined: “My analysis . . . provides statistically significant evidence that 

the vast majority of employees always took their meal breaks. I saw no 

statistically valid evidence supporting the hypothesis of a system-wide policy of 

denying meal breaks.” (Underlining deleted.) 

Petitioners further maintained that individualized issues predominated over 

common issues. They offered a declaration from economist Hyowook Chiang, 

who had examined the time punch data and payroll records reviewed by Lietzow. 

Chiang stated: “My analys[i]s . . . shows significant variability [in time punches 

reflecting apparent short, late, and missed breaks] across jobs, departments, stores, 

employees, and shift start time. Moreover, it shows that the overwhelming 

majority of short, late, and missed meal period punches [sic] can be traced to a 

small minority of employees, and that a vast majority of employees have a zero or 
13

very low rates of short, late, or missed punches. Most importantly, it shows 

absolutely no evidence of a companywide policy or practice of depriving 

employees of meal periods.” (Underlining deleted.) 

3. Reply

Real parties contended that petitioners’ opposition “completely 

sidestep[ped]” their theory of liability, namely, “that [petitioners] had a practice 

before June 17, 2007 of not paying meal break premiums and that this practice 

constituted an unlawful and unfair business practice . . . .” Noting that the 

premium wages are intended to compensate employees and shape employer 

conduct (Murphy, supra, 40 Cal.4th at pp. 1110-1111), real parties stated: “by 

engaging in a classwide practice of ignoring the statutory mandate of [s]ection 

226.7[, subdivision (b)], petitioners unilaterally deprived all class members . . . the 

compensation guarantee and enhanced enforcement [of the meal break duty].” 

According to real parties, petitioners made no attempt to dispute the 

existence of that practice and instead, repeatedly mischaracterized real parties’ 

theory as predicated on a policy of not automatically paying meal break premium 

wages. Real parties stated: “While automatically paying meal break premiums is 

precisely what [petitioners] began doing in mid-June of 2007 . . . , [real parties] 

have never asserted as a violation the failure to automatically pay premiums. . . .

[W]hat [real parties] allege is . . . that [petitioners] ‘automatically did not pay 

meal break premiums’ before mid-June of 2007, regardless of the circumstances.” 

Real parties maintained that for purposes of a UCL class action, the 

existence of an unlawful or unfair business practice and the amount of restitution 

were issues capable of common proof. They argued that establishing liability 

required no individualized inquiries into violations of section 512 and 226.7 
14

sufficient to bar class certification. They further argued that determining 

appropriate restitution involved no such assessments. They contended that a result 

of petitioners’ alleged practice, “the class members lost a substantial portion of the 

value they were otherwise guaranteed as part of their employment. Had they taken 

comparable jobs at comparable pay with other (presumably law abiding) retailers, 

the class members would have received the benefits of these statutory protections 

and would not have suffered this loss.” (Italics deleted.) The value of that loss, 

they further contended, was measurable under a “‘market value’ approach,” 

relying primary on evidence of petitioners’ own conduct. 

4. Supplemental Briefing

The trial court permitted the filing of a surreply and response to the 

surreply. Petitioners’ surreply contended the practice attributed to them by real 

parties supported no UCL claim. They reaffirmed their view that the practice was 

not unlawful under section 226.7, and argued the practice was therefore also not 

unfair. Petitioners further argued that the UCL claim failed because section 226.7 

permitted the alleged practice. Real parties’ response maintained that for purposes 

of the UCL, the alleged practice could be determined to be unfair even if it 

violated no law, and that no statute affirmatively permitted the practice. 

5. Ruling

In granting class certification, the trial court stated: “[Real parties] prove[] 

that[] before June 17, 2007, Safeway did not pay meal break premiums. . . . 

Safeway does not contest this fact. Safeway had thousands or tens of thousands of 

workers, but for years it never paid statutory meal break premiums. Why? One 

explanation is human perfection: Safeway never, ever erred. This explanation is 
15

possible. But human perfection is rare. Another explanation is deep, system-wide 

error: that Safeway was unaware of, or for some other reason[,] violated[] its duty 

to pay statutory premiums when required. [¶] This situation presents the central 

and predominating common issue: did Safeway’s system-wide failure to pay 

appropriate meal break premiums make it liable to the class during this period. 

This dominant common issue makes certification proper . . . .” 

D. Analysis

In reviewing the trial court’s ruling, our focus is on whether the court 

abused its discretion in granting class certification, not on the merits of real 

parties’ UCL claim, to the extent resolution of that issue is unnecessary to 

adjudicate the propriety of a class action (see pt. A., ante). As explained below, 

we see no error in the ruling.

The key questions concern whether common issues predominate, and 

whether the litigation of individual issues “can be managed fairly and efficiently.”

(Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28-29 (Duran).) The 

propriety of a UCL class action “‘hinges on “whether the theory of recovery 

advanced by the proponents of certification is, as an analytical matter, likely to 

prove amenable to class treatment.”’” (Id. at p. 28, quoting Sav-on Drug Stores, 

Inc. v. Superior Court (2004) 34 Cal.4th 319, 327.) Ordinarily, class treatment of 

a claim is appropriate if the facts necessary to establish liability are capable of 

common proof, including the so-called “‘fact of damage,’” that is, the existence of 

harm establishing an entitlement to damages. (B.W.I. Custom Kitchen v. OwensIllinois, Inc. (1987) 191 Cal.App.3d 1341, 1350-1354.) If the defendant’s liability 

can be determined “‘“by facts common to all members of the class,”’” a class may 

be certified even though class members must individually establish the amount of 
16

their restitution. (See Duran, supra, 59 Cal.4th. at p. 28, quoting Brinker, supra, 

53 Cal.4th at pp. 1021-1022.) Nonetheless, “class treatment is not appropriate ‘if 

every member of the alleged class would be required to litigate numerous and 

substantial questions determining his individual right to recover following the 

“class judgment” on common issues.’” (Duran, supra, 59 Cal.4th. at p. 28,

quoting City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)

1. Liability

We begin by examining real parties’ theory of liability under the UCL, to 

the extent necessary to assess the propriety of a class claim. Generally, the UCL 

permits employees to obtain restitution for unpaid wages. (Cortez v. Purolator Air 

Filtration Products Co. (2000) 23 Cal.4th 163, 177 (Cortez)). As the trial court 

observed, the propriety of class treatment required more than the presentation of 

evidence that during the pertinent period, petitioners never paid meal break 

premium wages: that conduct subjected petitioners to liability suitable for class 

treatment only if they had a “system-wide” practice of failing to pay meal break 

premium wages “when required.” The court thus recognized that under real 

parties’ theory of liability, recovery of restitution called for a showing that never 

paying “appropriate” premium wages is an unlawful or unfair business practice

under the UCL, as well as a showing that petitioners actually engaged in that type 

of harmful practice -- or, as the trial court put it, that there was “deep, system-wide 

error.” As discussed below, our inquiry into those required showings establishes 

that real parties’ theory of liability is capable of common proof.
17

a. Failure to Pay Premium Wages “When Required”

Determining whether real parties’ theory is suitable for class treatment 

necessitates an inquiry into the factual issues relevant to the first showing, namely, 

the circumstances under which an employer’s failure to pay meal break premium 

wages may constitute an unlawful or unfair business practice under the UCL. We 

conclude that there is at least one such set of circumstances. 

As explained in Brinker, an employer discharges its duty to provide an offduty break “if it relieves its employees of all duty, relinquishes control over their 

activities and permits them a reasonable opportunity to take an uninterrupted 30-

minute break, and does not impede or discourage them from doing so.” (Brinker, 

supra, 53 Cal.4th at p. 1040.) When the employer does so, its knowledge that an 

employee is working through a meal break establishes no violation of the duty to 

pay premium wages, though the employer must still compensate the employee for 

the time worked. (Ibid., fn. 19.) In contrast, if the employer knows that meal 

breaks are missed, shortened, or unduly delayed because the employer has 

instructed the employee to work, or has otherwise impeded the taking of breaks, 

that duty is contravened, absent a suitable waiver or agreement by the employee. 

(See id. at pp. 1039-1040, 1049.) 

In view of Murphy, under those circumstances, the employee is 

“immediately” entitled to the premium wage, without any demand or claim to the 

employer, in a manner “akin to an employee’s immediate entitlement to payment 

of wages or for overtime.” (Murphy, supra, 40 Cal.4th at p. 1108.)5The Labor 

5 Petitioners suggest that employers are not obliged to pay premium wages 

under those circumstances if employees do not request them or their supervisors 

merely fail to order payment of the wages. We disagree. As explained in Murphy, 

an employee’s right to the premium wages vests prior to any action taken to 

(Fn. continued on next page.)
18

Code contains numerous provisions requiring the payment of wages (e.g., § 204 

[requiring payment of wages every two weeks, unless specified otherwise in 

employment contract]), including overtime wages (§ 510, subd. (a)), as well as 

provisions intended to enforce those requirements (e.g., § 210 [imposing penalties 

for failing to make timely wage payments]; § 1194 [authorizing civil actions to 

recover unpaid overtime wages].) The Labor Code thus embodies a public policy 

“in favor of full and prompt payment of wages due an employee.” (Kerr’s 

Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, 

326.) We therefore conclude that a UCL claim may be predicated on a practice of 

not paying premium wages for missed, shortened, or delayed meal breaks

attributable to the employer’s instructions or undue pressure, and unaccompanied 

by a suitable employee waiver or agreement. (See Cortez, supra, 23 Cal.4th at 

p. 177 [under UCL, employer’s failure to pay earned wages was an unlawful 

business practice]; Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1206 [under 

UCL, California employer’s failure to pay overtime wages to out-of-state 

employees was an unlawful business practice]; Tomlinson v. Indymac Bank F.S.B

(2005) 359 F.Supp.2d 891, 895-897 [employer’s failure to pay meal break 

premium wages was an unlawful business practice under the UCL].) 

Petitioners contend no UCL claim can be predicated on a practice of not 

paying premiums, absent evidence that the employer failed to “provide” lawful 

meal breaks. They argue that under Kirby, there is no theory under which a failure 

to pay meal break premium wages is “separately actionable” from a failure to 

 

enforce that right. (Murphy, supra, 40 Cal.4th at p. 1108.) For that reason, 

employers owe the premium wages in the absence of any request by employees or 

payment authorization by their supervisors.
19

provide meal breaks. In addition, they argue that under Brinker, an employer that 

provides meal breaks is not obliged to ensure that employees do not work through 

them. 

Although we do not disagree with petitioners’ primary contention, it does 

not address real parties’ theory of liability, as elaborated above. Nothing in Kirby

or Brinker forecloses that theory, which is predicated not on a failure to pay 

premium wages in the absence of section 226.7 violations, but on an alleged 

practice of failing to pay them when required. As explained above, under that 

theory, when an employer directs or improperly pressures employees to miss, 

shorten, or delay meal breaks in the absence of a suitable waiver or agreement, 

employees accrue premium wages that the employer is obliged to pay, without any 

demand or action by the employee.6 

Petitioners maintain that real parties have identified no unlawful or unfair

practice. They invoke two restrictions on liability under the UCL traceable to CelTech, supra, 20 Cal.4th 163, which involved UCL claims relating to the marketing 

of consumer goods and services. There, our Supreme Court stated that no UCL 

claim may be predicated on a practice for which there is a “‘safe harbor,’” that is, 

specific legislation that “clearly permit[s]” the practice. (Cel-Tech, supra, at 

pp. 182-183.) In addition, the court concluded that for purposes of the type of 

UCL claim presented to it, the public policy necessary to establish an unfair 

practice must be closely tied to a statute. (Cel-Tech, supra, at p. 187.) The court 

stated: “When a plaintiff who claims to have suffered injury from a direct 

6

In a related contention, petitioners’ reply brief suggests that real parties’ theory is 

predicated on petitioners’ lack of a “formal policy” regarding the payment of meal break 

payment wages. However, the theory relies on the practice described above, not the 

absence of any such formal policy. 
20

competitor’s ‘unfair’ act or practice invokes [the UCL], the word ‘unfair’. . . 

means conduct that threatens an incipient violation of an antitrust law, or violates 

the policy or spirit of one of those laws because its effects are comparable to or the 

same as a violation of the law, or otherwise significantly threatens or harms 

competition.” (Ibid.) Following Cel-Tech, at least one appellate court has 

concluded that in any UCL action, the public policy underlying an alleged unfair 

practice “must be ‘tethered’ to specific constitutional, statutory, or regulatory 

provisions.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 854.)

Relying on Kirby, petitioners contend that the practice attributed to them 

regarding the nonpayment of meal break premium wages was lawful and 

permissible. However, under the “safe harbor” exception to UCL liability, “[t]here 

is a difference between (1) not making an activity unlawful, and (2) making that 

activity lawful.” (Cel-Tech, supra, 20 Cal.4th p. 183.) Kirby stands solely for the 

proposition that an employer’s failure to pay accrued meal break premium wages 

is not itself a violation of section 226.7. Nothing in Kirby suggests that section 

226.7 or any other provision of the Labor Code “clearly permit[s]” an employer to 

withhold accrued meal break premium wages (Cel-Tech, supra, 20 Cal.4th at 

p.p. 182-183). 

Petitioners also contend that because real parties have asserted no class 

claim for violations of section 226.7 based on a policy or practice of denying meal 

breaks, they cannot maintain a class claim under the UCL based on an alleged 

practice of never paying meal break premium wages. The crux of their argument 

is that under the test for unfairness in Cel-Tech, no UCL claim for an unfair 

practice is tenable absent an underlying claim for a Labor Code violation. We 

disagree. Nothing in Cel-Tech suggests that unfairness requires a statutory 

violation; on the contrary, Cel-Tech expressly states that the UCL is independent 
21

of other statutes, and prohibits unfair practices not otherwise unlawful. (Cel-Tech, 

supra, 20 Cal.4th at pp. 180-181.) Furthermore, assuming --without deciding --

that the test for unfairness set forth in Cel-Tech is applicable to petitioners’ claim, 

the alleged practice is unfair, in view of the Labor Code provisions discussed 

above regarding timely payment of wages, as well as the public policy they 

embody. 

Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, upon which 

petitioners rely, is distinguishable. There, a franchisor of convenience stores 

imposed a contractual obligation on franchisees to obtain payroll services from the 

franchisor. (Id. at pp. 1180-1181.) A franchisee’s employee asserted a UCL class 

action against the franchisor, alleging that its payroll system did not fully 

compensate franchisee employees for their work. (Aleksick v. 7-Eleven, Inc., 

supra, 205 Cal.App.4th at pp. 1180-1181.) When the franchisor secured summary 

judgment on the claim, the appellate court affirmed, concluding that because the 

franchisor was not the class members’ employer, the UCL claim failed for want of 

a cognizable unlawful or unfair practice under the Labor Code. (Aleksick v. 7-

Eleven, Inc., supra, at pp. 1185-1193.) Here, in contrast, petitioners employed real 

parties and the putative class members during the pertinent period.

Petitioners further contend the trial court erred in certifying real parties’ 

UCL theory for class treatment in the absence of a suitable showing of “[p]redicate 

[l]iability.” They argue that the theory presupposes liability without proof, and 

that the trial court’s ruling denied them due process. However, the court 

recognized that real parties’ theory required a demonstration of facts sufficient to 

establish liability. As noted above, an element of the common issue identified by 

the court was whether “there was deep, system-wide error.” The court thus
22

effectively determined that the facts required to show liability were suitable for 

class treatment. We therefore turn to that aspect of the court’s ruling.

b. “Deep, System-Wide Error” 

To demonstrate the propriety of class certification, real parties were obliged 

to show that the practice described above and the so-called “fact of damage” --

that is, the existence of harm supporting a recovery of restitution -- were capable 

of common proof. Generally, the fact of damage is suitable for class treatment 

only when the class members “‘“have sustained the same or similar damage.”’” 

(Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1349-1350, italics deleted,

quoting Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 664.) Aside 

from submitting evidence relating to the existence of the practice, real parties 

proposed a theory of recovery identifying the restitution sought and their 

entitlement to it. They maintained they did not seek accrued meal break premium 

wages owed to individual class members, but rather the loss of the “compensation 

guarantee and enhanced enforcement” implemented by section 226.7. According 

to real parties, that loss was imposed on “all class members,” as “the class 

members lost a substantial portion of the value they were otherwise guaranteed as 

part of their employment . . . .” (Italics added.) 

Real parties’ evidentiary showing relied on their own declarations and 

deposition testimony, as well as deposition testimony from petitioners’ managers. 

That evidence showed that prior to 2007, real parties often had been directed or 

pressured by supervisors not to take meal breaks, and that petitioners had no 

mechanism by which the premium pay related to meal breaks was calculated or 

determined when due. In addition, real parties submitted the declaration from 

accounting expert Leitzow, who offered opinions based on a sample of petitioners’ 
23

time punch data and payroll records. He estimated that petitioners’ full records for 

the pertinent break would disclose 27,095,927 “meal break violations,” that is, 

instances in which employee time punch data reflected omitted, shortened, or 

delayed meal breaks. He also stated that the records he reviewed -- including real 

parties’ own payroll records -- showed no premium wage payments under the 

earning codes used to document section 226.7 payments.7

In our view, real parties demonstrated that the existence of the practice and 

the fact of damage were matters suitable for class treatment. Real parties’ 

evidence supports the reasonable inference that in the context of a class action, 

they could establish that petitioners engaged in the alleged practice, that is, they 

never paid meal break premium wages, even though a significant number of 

employees accrued them. Furthermore, in view of real parties’ theory of 

restitution, those facts would also suffice to demonstrate the fact of damage. 

Under that theory, the fact of damage does not require a showing that all -- or 

virtually all -- class members accrued unpaid meal break premium wages, but only 

that on a system-wide basis, petitioners denied the class members the benefits of

the compensation guarantee and enhanced enforcement implemented by section 

226.7. 

We find further support for our conclusion from the concurring opinion of 

Justice Werdegar in Brinker, who also authored the majority opinion. In the 

concurring opinion, for the guidance of the parties on remand, Justice Werdegar

stated the majority opinion did not accept the employer’s contention that the 

7 Although the principles regulating the use of statistical methods to establish 

liability in class actions are unsettled, the use of such a method may be proper when the 

defendant is not prevented from impeaching it or presenting defenses. (Duran, supra, 59 

Cal.4th 35, 38-40.) 
24

determinations necessary to show why meal breaks were missed categorically 

precluded certification of a class action for missed meal breaks. (Brinker, supra, 

53 Cal.4th at p. 1052 (conc. opn. of Werdegar, J.).) In explaining that a variety of 

methods existed to render such actions manageable, Justice Werdegar placed 

special emphasis on a presumption based on record-keeping obligations. (Id. at 

pp. 1052-1054 (conc. opn. of Werdegar, J.).) Justice Werdegar stated that when 

the applicable IWC wage order obliges the employer to record meal breaks, “[i]f 

[those] records show no meal period for a given shift over five hours, a rebuttable 

presumption arises that the employee was not relieved of duty and no meal period

was provided. . . . An employer’s assertion that it did relieve the employee of 

duty, but the employee waived the opportunity to have a work-free break, is not an 

element that a plaintiff must disprove as part of the plaintiff’s case-in-chief. 

Rather, . . . the assertion is an affirmative defense, and thus the burden is on the 

employer, as the party asserting waiver, to plead and prove it. [Citations.]”

(Brinker, supra, at p. 1053 (conc. opn. of Werdegar, J.).) In view of the 

presumption and other methods of rendering a class action manageable, including 

representative testimony, surveys, and statistical analysis, there is no per se bar to 

class actions related to missed meal breaks, although denial of certification may be 

necessary in some instances.8 (Id. at pp. 1053-1055 (conc. opn. of Werdegar, J.).) 

8 The presumption discussed by Justice Werdegar is predicated on the United States

Supreme Court’s decision in Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680. 

(Brinker, supra, 53 Cal.4th at p. 1053, fn. 1 (conc. opn. of Werdegar, J.).) There, 

employees asserted claims for unpaid overtime under the Federal Labor Standards Act 

(FLSA) (29 U.S.C. § 201 et seq.), alleging that because their employer’s time-keeping 

system automatically reduced their clocked breaks of work in a predetermined manner, 

they were not fully compensated for work performed. (Anderson v. Mt. Clemens Pottery 

Co., supra, 328 U.S. at pp. 682-684.) Noting that the FLSA obliged employers to keep 

proper work records, the high court determined that once the employees had adequately 

(Fn. continued on next page.)
25

Here, establishing that a significant number of employees accrued unpaid 

meal break premium wages is capable of common proof, in view of petitioners’ 

time punch data and the presumption identified by Justice Werdegar. There is no 

dispute that the applicable wage order is Wage Order 7-2001 (Cal. Code Regs., tit. 

8, § 11070), which obliges employers to provide at least one 30-minute meal break 

for shifts of over five hours (absent a waiver available only in limited 

circumstances) (id., subd. (11)(A)), requires employers to record meal breaks (id., 

subd. (7)(A)(3)), and permits an “on duty” meal break only with the employee’s

express written agreement (id., subd. (11)(C)). The time punch data and records 

identified by Leitzow are capable of raising a rebuttable presumption that a 

significant portion of the missed, shortened, and delayed meal breaks reflected 

meal break violations under section 226.7. Because that fact potentially can be 

shown without consideration of an unwieldy number of individualized issues, the 

record shows that the facts necessary to establish liability are capable of common 

proof.

Petitioners’ contentions are largely directed at a theory real parties do not 

assert. They maintain that real parties’ UCL claim is not suitable for class 

treatment for several reasons, each of which relies on the assumption that real 

parties seek unpaid meal break premium wages. Their primary contention is that 

the issues regarding liability and the entitlement to restitution are incapable of 

 

shown they performed work for which they were owed compensation and sufficient 

evidence of the amount of that work, the burden shifted to the employer “to come forward 

with evidence of the precise amount of work performed.” (Anderson v. Mt. Clemens 

Pottery Co. supra, at pp. 687-688.) A contrary holding, the court explained, would 

“penalize” employees and “place a premium on an employer’s failure to keep proper 

records in conformity with his statutory duty; it would allow the employer to keep the 

benefits of an employee’s labors without paying due compensation as contemplated by 

the [FLSA].” (Id. at p. 687.)
26

common proof unless they had a policy or practice of denying meal breaks. In the 

absence of such a policy or practice, petitioners argue, class treatment of real 

parties’ claim necessitates individualized assessments of the time punch data to 

establish section 226.7 violations and the accrual of premium wages. Petitioners 

further maintain they had policies guaranteeing meal breaks, and there is no 

evidence they systematically required employees to miss, shorten, or delay meal 

breaks. They point to the evidence that prior to June 2007, they provided meal 

breaks to the putative class members in compliance with sections 226.7 and 512, 

Wage Order 7-2001, and the applicable collective bargaining arguments.9

As explained above, however, real parties’ theory of liability does not 

require individual issues sufficient to preclude class treatment. That theory 

predicates liability on petitioners’ alleged practice of never paying meal break 

premium wages when required, and seeks restitution for the class-wide loss of the 

statutory benefits implemented by section 226.7, not the premium wages accrued 

by class members. Accordingly, establishing real parties’ theory does not 

9 We note that petitioners represent that Safeway paid meal break premiums before 

2007 “as required under its collective bargaining agreements.” However, during the 

hearing on the certification motion before the trial court, petitioners’ counsel 

acknowledged that they had submitted no evidence that even a single meal break 

premium wage was ever paid. To the extent petitioners suggest that the contractual 

penalties amounted to payment of the premium wages owed under section 226.7, they 

have forfeited that contention, as they did not raise it before the trial court, and offer no 

argument with citation to legal authority to support it. (Evans v. Lasco Bathware, Inc.

(2009) 178 Cal.App.4th 1417, 1429, fn. 6 (Evans); Okasaki v. City of Elk Grove (2012) 

203 Cal.App.4th 1043, 1045, fn. 1; OCM Principal Opportunities Fund, L.P. v. CIBC 

World Markets Corp. (2007) 157 Cal.App.4th 835, 844, fn. 3; 9 Witkin, Cal. Procedure 

(5th ed. 2008) Appeal, § 701, pp. 769-771.)
27

necessitate excessive individualized assessments of time punch data or similar 

inquiries.10 

Petitioners also contend the class definition is defective because it is 

“completely disconnected” from real parties’ theory of liability, and contains 

individuals owed no meal break premium wages, as well as individuals regarding 

whom the existence of a meal break violation is difficult to assess. Those

contentions fail, however, as real parties’ theory of restitution places the purported 

loss on all members of the class, as defined. 

Petitioners challenge real parties’ theory of restitution, arguing that they 

seek restitution for a loss not cognizable under the UCL. However, as petitioners 

raised no objection to the theory before the trial court, and first raised their 

challenges in their reply brief in this writ proceeding, they have forfeited their 

contentions of error. (Evans, supra, 178 Cal.App.4th at p. 1429, fn. 6.) In so 

concluding, we note that the forfeiture does not bar petitioners from attacking the 

theory by means of a motion for summary judgment or other suitable manner. 

(Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278, 296-297.)

10 The decisions upon which petitioners rely are factually distinguishable. In each 

case, the party seeking class certification of claims related to section 226.7 did not rely on 

real parties’ theory of restitution, and the pertinent court determined the propriety of class 

treatment on the basis of a different theory of recovery. (Sotelo v. Medianews Group, Inc.

(2012) 207 Cal.App.4th 639, 652-655; Ugas v. H & R Block Enterprises, LLC (C.D. Cal. 

2012) 2012 U.S. Dist. LEXIS 156359, *1-*13; Uddin v. Radio Shack, Corp. (C.D. Cal. 

July 2, 2012, CV 11-398 CAS (JCGx)), pp. 13-15; Gonzalez v. Millard Mall Services, 

Inc. (S.D. Cal. 2012) 281 F.R.D. 455, 461-464 [2012 U.S. Dist. LEXIS 28142, **14-

**24]; Ordonez v. Radio Shack, Inc. (C.D. Cal. 2013, Jan. 17, 2013, No. CV 10-7060-

CAS (JCGx)) 2013 U.S. Dist. LEXIS 7868, *17-*24.) 
28

2. Determining the Amount of Restitution

We further conclude that determining the amount of restitution under real 

parties’ theory of restitution presents no issues precluding class certification. 

Regarding restitution, the UCL provides that “[t]he court may make such orders or 

judgments . . . as may be necessary to restore to any person in interest any money 

or property, real or personal, which may have been acquired by means of such 

unfair competition.” (Bus. & Prof. Code, § 17203.) As noted above (see pt. D.1., 

ante), the UCL permits employees to obtain restitution for unpaid wages. (Cortez, 

supra, 23 Cal.4th at p. 177.) In suitable circumstances, “the return of the excess of 

what the plaintiff gave the defendant over the value of what the plaintiff received” 

is an appropriate measure of restitution. (Id. at p. 174.) Generally, “[i]in order to 

recover under th[at] measure, there must be evidence of the actual value of what 

the plaintiff received. When the plaintiff seeks to value the product received by 

means of the market price of another, comparable product, that measure cannot be 

awarded without evidence that the proposed comparator is actually a product of 

comparable value to what was received. [Citation.]” (In re Vioxx Class 

Cases (2009) 180 Cal.App.4th 116, 131.) 

As noted, real parties do not seek the unpaid accrued meal break premium 

wages, but instead maintain that valuing the loss of the “statutory protections” to 

the class can be determined by a “‘market value’ approach.” Before the trial court 

and in this proceeding, they have proposed a specific application of the measure of 

restitution discussed above, arguing that the loss is “directly measurable” by 

reference to petitioners’ own conduct, namely, their 2007 decision to begin paying 

meal break premium wages “automatically” for short, late, and missed meal breaks 

reflected in time punch data. They assert that petitioners effectively identified “the

least costly method to correct [their] pre-June 2007 practice.” 
29

We do not examine the merits of real parties’ proposed measure of 

restitution, as no such inquiry is necessary for a determination whether it precludes

class treatment of real parties’ UCL claim. For purposes of our review, it is 

sufficient that the proposed measure does not require the litigation of issues 

unsuitable for class certification. Furthermore, because petitioners raised no 

challenge to the real parties’ proposed measure of restitution prior to their reply 

brief in this proceeding, they have forfeited any contention of error regarding it. 

In sum, the trial court did not err in certifying real parties’ UCL claim for class 

treatment.
30

DISPOSITION

The petition for writ of mandate is denied. Real parties are awarded their 

costs. 

CERTIFIED FOR PUBLICATION

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.