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Safeway, Inc. v. Superior Court (Enrique Esparza)

California Court of Appeals, Second District, Fourth Division

July 22, 2015

SAFEWAY, INC. et al., Petitioners,

ORIGINAL PROCEEDINGS in mandate. Los Angeles County Super. Ct. No. BC487830 John Shepard Wiley, Judge.

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Payne & Fears, James L. Payne, Eric C. Sohlgren, Jeffrey K. Brown and Andrew K. Haeffele for Petitioners.

No appearance for Respondent.

Arias Ozzello & Gignac, Mike Arias, Makael H. Stahle and Alfredo Torrijos for Real Parties In Interest.



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 of mandate 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.

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In 2007, the initial class action complaint was filed in the underlying action. In February 2009, real parties in interest 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 in interest 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 December 28, 2001. In connection with the meal break class, real parties in interest 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.


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

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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; and (3) class representatives who can adequately represent the class. [Citation.]” (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [174 Cal.Rptr. 515, 629 P.2d 23].)

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. [Citations.] 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 not affect the ultimate certification decision.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1025 [139 Cal.Rptr.3d 315, 273 P.3d 513] (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 [56 Cal.Rptr.3d 861, 155 P.3d 268].)

Petitioners challenge the class certification on several grounds, including the legal viability of real parties in interests's theory of recovery under the UCL. However, because certification is not “conditioned upon a showing that class claims for 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)

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23 Cal.4th 429, 443 [97 Cal.Rptr.2d 179, 2 P.3d 27]. 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 in interest 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 ...

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