California Court of Appeals, Second District, Third Division
Pub. And Mod. Order 11/26/13
APPEAL from an order of the Superior Court of Los Angeles County, No. BC412413 Maureen Duffy-Lewis, Judge.
Thierman Law Firm, Mark R. Thierman, Jason J. Kuller; Eric M. Epstein; United Employees Law Group and Walter Haines for Plaintiffs and Appellants.
Seyfarth Shaw, Candice T. Zee, George Preonas, Andrew Paley and Eric Steinert for Defendant and Respondent.
Kwesi Jones, on behalf of himself and others similarly situated (collectively Plaintiffs), filed a class action complaint against Farmers Insurance Exchange (Farmers) alleging wage and hour violations. Plaintiffs appeal the denial of their motion for class certification and the striking of their amended class certification motion. They contend the trial court erred in concluding that common issues of law or fact do not predominate over individual issues, that class certification would not provide substantial benefits to litigants and the courts, and that Jones cannot adequately represent the class.
We conclude that common issues do predominate and class certification would provide substantial benefits to litigants and the courts. We also conclude that substantial evidence supports the trial court’s finding that Jones cannot adequately represent the class, and Plaintiffs have shown no prejudicial error in the striking of their amended class certification motion. We therefore will reverse the order denying the class certification motion and remand with directions to (1) allow Plaintiffs leave to file an amended complaint naming a suitable class representative, and (2) grant the motion for class certification if the court approves a class representative. We also will affirm the order striking Plaintiffs’ amended class certification motion.
FACTUAL AND PROCECURAL BACKGROUND
1. Factual Background
Farmers employs claims representatives to adjust insurance claims for physical damage to automobiles. “Auto Physical Damage” (APD) claims representatives spend most of their time in the field inspecting damaged vehicles at auto body shops or other locations, meeting with claimants, negotiating the settlement of claims, and accessing and entering information onto Farmers’s database using laptop computers. They obtain their assignments using a computer program known as ServicePower, which they access using laptop computers. Claims representatives travel to their first assignment of the day from their homes rather than from an office, and their travel time to their first assignment is uncompensated unless it exceeds their normal travel time.
Farmers issued a personalized memorandum with the subject line “Work Profile” to each APD claims representative shortly after the ServicePower program was first implemented in 2008. The memorandum stated the normal work hours for each claims representative and stated that each claims representative was required to be present at the location of his or her first assignment at the beginning of the workday. It stated that driving time from the employee’s home to the first assignment of the day and from the last assignment of the day back home was not compensable unless the time exceeded the employee’s normal commute time or the employee, with the approval of a supervisor, was performing compensable administrative work at home.
The “Work Profile” memorandum also stated that claims representatives might be required to perform work tasks at home for which they would not be compensated. It described compensable and noncompensable work tasks as follows:
“1.) Computer sync time which ordinarily takes minimal time to perform and is not compensable. For example, taking a few minutes to sync your computer, obtaining assignments/driving directions before getting in your car and driving to your first appointment. Your work day does not begin until you arrive at your first assignment, unless your commute was longer than their normal commute.
“2.) Administrative, which is defined as ‘principle’ work and is compensable. For example, you take 30 minutes to perform required administrative duties, with supervisor approval before getting in your car and driving to your first assignment. Because the administrative work is considered principle work you will be compensated for this time, plus all drive time to your first assignment. The same would be true for the drive home if administrative work needs to be completed at home to end the day.”
Jones worked for Farmers as a claims representative from March 2006 until September 2008, when Farmers discharged him for an alleged pattern of reporting that he was working in the field when he was actually at home. Jones filed a complaint against Farmers regarding his discharge. That action has been settled and dismissed.
2. Trial Court Proceedings
Plaintiffs filed their complaint against Farmers in the present action in April 2009 and filed a first amended complaint in May 2010 alleging that Farmers failed to compensate its APD claims representatives for work performed before the beginning of their scheduled shifts. Plaintiffs allege that such unpaid work includes starting up their computer each day, accessing the ServicePower program, obtaining their first assignment, downloading property damage estimate forms, contacting auto body shops to confirm the location of damaged vehicles, contacting the insured, and driving to the auto body shop or other location of their first assignment.
Plaintiffs allege counts for (1) unpaid overtime; (2) failure to provide itemized wage statements; (3) failure to pay minimum wages; (4) civil penalties under Labor Code section 2699; and (5) unfair competition. They seek damages, statutory penalties and restitution. Each count is alleged both by Jones individually and on behalf of a class of current or former Farmers employees who are not exempt from California’s overtime laws and who worked as APD claims representative and used the ServicePower program to obtain their work assignments.
Plaintiffs filed a motion for class certification in March 2011 seeking to certify the same class described in the complaint. The motion was supported by the declarations of 51 putative class members. The declarants stated, generally, that they were required to perform various tasks in the morning before arriving at the location of their first assignment, as alleged in the complaint, but were not compensated for the time spent performing those tasks. They stated that their work shifts generally began upon their arrival at the location of their first assignment or at 8:00 a.m. and that they spent, on average, 4.28 hours per week performing unpaid work before the beginning of their shifts. Plaintiffs argued that Farmers had a company-wide policy of requiring APD claims representatives to work at home without compensation and that the “Work Profile” memorandum was evidence of this policy.
Farmers filed an ex parte application to continue the hearing on the motion to August 19, 2011. The trial court granted the application on March 30, 2011, continuing the hearing to August 19, 2011. Plaintiffs filed an amended class certification motion in May 2011 seeking to modify the class definition to include all of the previously described employees who used either ServicePower or the Pathways program to obtain their work assignments. The court continued the hearing on the class certification motion to October 28, 2011.
Farmers opposed the class certification motion arguing that it had no uniform policy requiring unpaid preshift work and, absent such a policy, individual issues predominated and class treatment was inappropriate. Farmers argued that its claims representatives were not required to work off-the-clock and were prohibited from doing so, and argued that the “Work Profile” memorandum did not show otherwise. It also argued ...