CALIFORNIA CLASS ACTION LAW

Category: Ascertainability

Fourth District Reverses Denial of Meal & Rest Break Class Action

English: Cash transport van with guards in Gua...

English: Cash transport van with guards in Guangzhou, China Русский: Машина инкассаторов с охраной в Гуанчжоу (Photo credit: Wikipedia)

In a meal and rest break class action, the Fourth District on Friday reversed the denial of certification of a class of security guards.  Faulkinbury v. Boyd & Associates, Inc., No. G041702, __ Cal. App. 4th. __ (4th Dist. May 10, 2013).  Reconsidering in light of the California Supreme Court decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), the court concluded that the primary issue was the legality of certain company policies, which could be determined on a class-wide basis, even if the application of the policies varied by individual.  

By CHARLES H. JUNG

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Second District Affirms Denial of Class Certification, Finding Trial Court Appropriately Decided Threshold Legal Issue Re Provision of Meal Breaks

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In a putative meal and rest break class action, the Second District denied class certification, holding that “employers must provide employees with breaks, but need not ensure employees take breaks.”  Hernandez v. Chipotle Mexican Grill, Inc., No. B216004, 2010 WL 3789012 (Cal. Ct. App. 2d Dist. Sept. 30, 2010).  Plaintiff and appellant Rogelio Hernandez (Hernandez) Hernandez filed a class action lawsuit against Chipotle Mexican Grill, Inc. (Chipotle) alleging that Chipotle violated labor laws by denying employees meal and rest breaks. Id. *1. The trial court denied class certification, and plaintiff appealed.  Id. The Court of Appeal affirmed, holding that it would not be “practical” to require “enforcement of meal breaks” since it “would place an undue burden on employers whose employees are numerous or who … do not appear to remain in contact with the employer during the day.”  Id. *7. “It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws.” Id.

The Court of Appeal also held that: (1) It was appropriate for the trial court to decide the threshold legal issue of whether employers must provide meal breaks rather than ensure they be taken as it could not otherwise assess whether class treatment was warranted; (2) a party seeking to introduce sampling of employee testimony to support certification must explain how the procedure will effectively manage the issues in question; and (3) there was substantial conflicts of interest among the putative class members were some employees moved in and out of supervisory roles with the responsibility to provide meal and rest breaks for themselves and other employees on the shift. Read the rest of this entry »

Fourth District Reverses Denial of Class Certification in Mail-In Rebate Case

BUY.COM FAIL
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The Fourth District Court of Appeal reversed a denial of class certification in Kershenbaum v. Buy.com, Inc.,  No. G042303, 2010 WL 3800339 (Cal. Ct. App. 4th Dist. Sept. 30, 2010).  Plaintiff Richard M. Kershenbaum did not receive an advertised rebate on a product he purchased through Buy.com, Inc.’s Web site. Id. *1. Buy.com contended the rebate was offered by the product manufacturer, and it was therefore not responsible for compensating Kershenbaum. Id.

The Court of Appeal held that the trial court erred in denying the motion for class certification:

The different definitions of the proposed class contained in the memorandum of points and authorities and the proposed order did not warrant denial of the motion for lack of ascertainability. Any confusion caused by the different definitions could and should have been remedied by the trial court, either by correcting the proposed order, or by independently drafting a new order.

We further conclude the trial court erred in denying the motion on the ground that common questions of law did not predominate. The California choice-of-law provision in Buy.com’s terms of use agreement applies to the claims asserted by the class. Even if the choice-of-law provision did not apply, class certification was still appropriate because significant contacts with California have been shown to exist, and Buy.com cannot demonstrate that any foreign law, rather than California law, should apply to the class claims.

We also conclude the trial court erred in determining the claims asserted by the class were vague.

Finally, Kershenbaum had standing to assert a claim for misleading advertising; the trial court erred in determining otherwise. Read the rest of this entry »

Second District Affirms Denial of Certification of Class of Junk Fax Recipients for Lack of Ascertainability

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The Second District affirmed denial of certification of a class of recipients of unsolicited faxes. Law Offices of Hermez Moreno v. Travelcomm Industries, Inc., B214807, 2010 WL 3610131 (Cal. Ct. App. 2d Dist. Sept. 17, 2010).  Plaintiff and appellant Law Offices of Hermez Moreno brought a putative class action under 47 United States Code section 227, the Telephone Consumer Protection Act of 1991 (TCPA), and Business and Professions Code 17538.43 alleging that defendants and respondents Travelcomm Industries, Inc. and others had sent unsolicited faxes.  Id. *1.  The trial court denied class certification based on findings that plaintiff had failed to present substantial evidence that a community of interest existed such that common questions of law and fact would predominate. As a separate basis, the court found that appellant had failed to present substantial evidence that the class was ascertainable. Id. Plaintiff appealed.  Id. *1. Read the rest of this entry »