In Mies v. Sephora U.S.A., Inc., ___ Cal.App.4th ___ (Feb. 2, 2015; pub. ord. Feb. 26, 2015), the Court of Appeal (First Appellate District, Division One) affirmed an order denying class certification in an employee misclassification case.
The Court's analysis relied heavily on Duran. See slip op. at 11-14. The opinion also includes this footnote of interest:
This is not a case like Williams v. Superior Court (2013) 221 Cal.App.4th 1353, 1358, 1369–1370 or Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 996, in which the class disputes (which were not misclassification disputes) centered on whether application of a uniform policy (no compensation for time before arrival at first worksite; no compensation for at home “computer sync time”) was lawful. If unlawful, some class members would be damaged and some might not be, but the employer would face liability as to each. Here, the question is not the legality of Sephora’s operational procedures. Instead, the parties dispute the evidentiary value of the policies—Mies claims they demonstrate total uniformity in the tasks Specialists perform and the manner in which they perform them. Sephora disagrees, and points to the varied declarations of Sephora employees, evidence the trial court credited. Thus, unlike in Williams and Jones, the policies here are just a piece of a far more complicated puzzle and do not, in light of the trial court’s factual determinations, provide a means of readily determining liability issues for the entire proposed class. The same rationale distinguishes Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 726, in which the issue was whether a policy regarding meal and rest breaks was unlawful on its face as to all class members.
Id. at 19 n.15. And the opinion had this to say concerning proffered statistical evidence:
Finally, the trial court did not err in rejecting Mies’ proposal to use statistical evidence to prove liability with respect to absent class members. Mies’ proposal was undeveloped and unsubstantiated, and the court was not required to accept her unjustified assurances regarding what she could prove, especially given the declaration of Sephora’s expert stating the use of sampling to determine liability with respect to absent class members would not work. (Duran, supra, 59 Cal.4th at pp. 31–32 [“a statistical plan for managing individual issues must be conducted with sufficient rigor”]; Dailey, supra, 214 Cal.App.4th at pp. 998–999 [“a mere proposal for statistical sampling” not “an adequate evidentiary substitute for demonstrating the requisite commonality”], italics omitted; cf. Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 510 [“Dr. Hoffman had not yet conducted a survey and his declaration describing the proper method for designing and implementing a scientific survey did nothing to refute the evidence presented by Big Lots that it did not operate its stores or supervise its managers in a uniform and standardized manner.”].)
Id. at 20-21 (footnote omitted).