In Estrada v. FedEx Ground Package System, Inc., ___ Cal.App.4th ___ (Aug. 13, 2007), the Court of Appeal (Second Appellate District, Division One) affirmed a judgment in favor of a class of FedEx delivery truck drivers, holding that the trial court correctly determined that the drivers were FedEx employees, not independent contractors, and that their expenses should have been reimbursed pursuant to Labor Code section 2802. The Court also held that some of the expenses were improperly disallowed, and remanded for redetermination of the amount (as well as for recalculation of attorneys' fees under Code of Civil Procedure section 1021.5).
The Court also rejected FedEx's post-trial challenge to the trial court's order granting certification and its approval of plaintiffs' use of representative ("anecdotal") testimony to establish their claims classwide:
The decision whether to certify a class is one within the trial court’s discretion and will be set aside only upon a showing of abused discretion. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.) On this record, FedEx cannot make the required showing because it is clear that common issues -- whether the drivers were employees and, if so, which expenses would be reimbursable -- predominated. The anecdotal evidence was admitted to show FedEx’s power to interpret the Operating Agreement and was relevant to the class as a whole, not just to the drivers who happened to be the subject of a particular anecdote. FedEx’s failure to raise this point below suggests it understood that it would fail (it did not at any time during the nine-week trial move for decertification on the basis of the anecdotal evidence). (Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1166-1167; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686.)
Slip op. at 15-16 (emphasis added).