The UCL Practitioner

New decision addresses (briefly) UCL standing: Boorstein v. CBS Interactive, Inc.

In Boorstein v. CBS Interactive, Inc., ___ Cal.App.4th ___ (Dec. 19, 2013), the Court of Appeal (Second Appellate District, Division Four) held that the plaintiff lacked standing to bring a claim against the defendant for violating the "shine the light" law (Civil Code §§ 1798.83 et seq.).  Slip op. at 9-18.  The panel determined that the plaintiff had not been "injured by a violation of this title," as the "shine the light" law requires.  Id. at 9 (quoting Civ. Code § 1798.84). 

As a result, the plaintiff also lacked standing to bring a UCL "unlawful" prong violation predicated on violation of that statute:

The UCL provides that to pursue a claim for relief under the statute, an individual must have “suffered injury in fact and ha[ve] lost money or property as a result of the unfair competition.”  (Bus. & Prof. Code, § 17204.)  For the reasons stated above, plaintiff failed to allege an “injury in fact.”  Thus, he has not stated a claim for relief under the UCL.  The demurrer to the second cause of action was properly sustained.

Slip op. at 18. 

Concurring opinion discusses "abuse of discretion" standard of review: Gaines v. Fidelity National Title Ins. Co. (Updated)

This case is neither a UCL case nor a class action, but I mention it because the concurring and dissenting opinion has a very interesting discussion of the "abuse of discretion" standard of review.  Gaines v. Fidelity National Title Ins. Co., ___ Cal.App.4th ___ (Dec. 12, 2013) (Second Appellate District, Division Eight) (Rubin, J., concurring).

That discussion begins:

As appellate judges we are taught to consider each case in the context of the applicable standard of review which, for the most part, is one or more of substantial evidence, abuse of discretion, and de novo review.  Many appellate decisions and some commentators have criticized the abuse of discretion standard as the most misused and most misunderstood of these.  Our colleague in Division 6, Justice Gilbert, has said that the “abuse of discretion standard is itself much abused.”  (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363.)  It is indeed.

Conc. opn. of Rubin, J., slip op. at 1. 

UPDATE:  On April 16, 2014, the Supreme Court granted review in this case.  Gaines v. Fidelity National Title Ins. Co., No. S215990.  This is the issue on review, according to the docket: 

Was this action properly dismissed for the failure to bring it to trial within five years or should the period during which the action was stayed for purposes of mediation have been excluded under Code of Civil Procedure section 583.340, subdivision (b) or (c)?

The Court of Appeal (Second Appellate District, Division Eight) held that the trial court did not abuse its discretion in dismissing the action as to all but one defendant.  Gaines v. Fidelity National Title Ins. Co., 222 Cal. App. 4th 25 (2013).

Supreme Court takes up UCL preemption case as a "grant and hold": Rodriguez v. RWA Trucking Co.

Last week, on December 11, 2013, the Supreme Court issued a "grant and hold" order in Rodriguez v. RWA Trucking Co., No. S214150. 

In Rodriguez, the Court of Appeal held that the plaintiffs' UCL "unlawful" prong claims were preempted, in part, by federal law, namely, the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501) ("FAAAA"). See Rodriguez v. RWA Trucking Co., ___ Cal.App.4th ___ (Sept. 12, 2013; mod. Sept. 20, 2013) (discussed in this blog post).

The Supreme Court is already considering FAAAA preemption in People ex rel. Harris v. Pac Anchor Transportation, Inc., No. S194388.  Briefing in Rodriguez has been deferred pending resolution of Harris.

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Class certification opinion from earlier this year: Ramirez v. Balboa Thrift and Loan

I did not previously cover a class certification opinion handed down last spring.  Ramirez v. Balboa Thrift and Loan, 215 Cal.App.4th 765 (2013), was filed on March 21, 2013, and was ordered published on April 21, 2013.

In Ramirez, the Court of Appeal (Fourth Appellate District, Division One) reversed an order denying class certification of UCL and Rees-Levering Act claims.  After determining that the trial court had misconstrued the Rees-Levering Act, the Court went on to reconfirm the rule that class certification should not be denied based on hypothetical arguments unsupported by evidence: 

Equally important for class certification purposes, even assuming the [trial court had correctly interpreted the Act], Balboa did not proffer any facts showing that [its proposed defense would] apply to any of the other class members. Instead, it merely stated that individual issues would predominate because it should be provided the right to “investigate” each class member to determine whether it could find any facts showing the applicability of any of the statutory exceptions. Without any foundational basis showing that such evidence could or would be discovered, this possibility does not raise a likelihood that individual issues would predominate over common issues in the litigation. (See Brinker, supra, 53 Cal.4th at p. 1025 [in deciding certification question court must examine the plaintiff's theory of recovery and “assess the nature of the legal and factual disputes likely to be presented,” italics added].)

Id. at 782-83.  The Court remanded for class certification to be determined anew, under the correct legal standards. 

The publication request filed by Public Good, Consumers for Auto Reliability and Safety, and the National Consumer Law Center is available at this link. 

New Ninth Circuit arbitration opinion: Smith v. JEM Group, Inc.

A new Ninth Circuit opinion affirms an order denying a motion to compel arbitration in a consumer class action.  Smith v. JEM Group, Inc., ___ F.3d ___ (9th Cir. Dec. 12, 2013).

The opinion, authored by Judge William Fletcher, includes this passage:

Washington procedural unconscionability law is concerned only with the process that results in the formation of the agreement. The state rule at issue in Concepcion, as well as the rules provided by the Court as examples [in Concepcion], were preempted because they specified the manner in which the arbitration could or should be conducted. Unlike those rules, the Washington law at issue says nothing about the manner in which an arbitration is to be conducted.

Slip op. at 11.

"Horton hears a death knell"

Yesterday's Daily Journal had this practice article with a defense perspective on the Fifth Circuit's decision in D.R. Horton, Inc. v. National Labor Relations Board, ___ F.3d ___ (5th Cir. Dec. 3, 2013), discussed in this blog post.

In a similar vein, readers may be interested in "Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution," 64 Ala. L. Rev. 1013 (2013).  The article was cited in the Fifth Circuit opinion:

A thorough explanation of the strongest arguments in favor of the Board’s decision, which embraces the Board’s distinctions from earlier Supreme Court pronouncements on arbitrations and adding some of its own, appears in a recent law review article. Charles A. Sullivan & Timothy P. Glynn, Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, 64 ALA. L. REV. 1013 (2013). We do not adopt its reasoning but note our consideration of its advocacy.

Slip op. at 25 n.11. 

Cert. petitions pending in front-load washer cases: Whirlpool v. Glaser and Sears, Roebuck v. Butler

Petitions for writs of certiorari have been filed in the two class actions involving breach of warranty claims against the manufacturers of front-load washing machines.  The actions allege that the machines were designed in a manner that fails to prevent internal mold build-up.  Whirlpool Corp. v. Glaser, No. 13-431; Sears, Roebuck & Co. v. Butler, No. 13-430.

The cases share a similar procedural history.  In both cases, the lower appellate courts (the Sixth and Seventh Circuits) held that the claims satisfied the requirements of Rule 23 and should be certified for class treatment.  Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012) (Posner, J.) (discussed here); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 678 F.3d 409 (6th Cir. 2012) (discussed in this blog post).  The defendants filed cert. petitions in both cases, and in both, the U.S. Supreme Court entered "GVR" orders ("grant, vacate and remand") directing the lower appellate courts to reconsider their rulings in light of Comcast.  (See these blog posts.)  In both cases, the lower appellate courts did so, and in both cases, those courts once again held that class certification was proper. Butler v. Sears Roebuck and Co., ___ F.3d ___ (7th Cir. Aug. 22, 2013) (discussed in this blog post); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., ___ F.3d ___ (6th Cir. Jul. 18, 2013) (discussed here).

The plaintiffs filed their joint opposition to the cert. petitions last Friday, December 6, 2013.  This Reuters article discusses that fiing in more detail.  The article quotes one of the defense attorneys as saying that he expects the two petitions to be conferenced on January 10, 2014, although neither docket indicates this. 

The two cert. petitions, which were filed in October, are available here (Whirlpool) and here (Sears).

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Fifth Circuit reverses NLRB arbitration decision: D.R. Horton, Inc. v. National Labor Relations Bd.

In a closely-watched case, D.R. Horton, Inc. v. National Labor Relations Board, ___ F.3d ___ (5th Cir. Dec. 3, 2013), the Fifth Circuit, by a 2-1 vote, relied heavily on Concepcion in reversing the NLRB's ruling that requiring employees to sign a no-class-action arbitration agreement was an unfair labor practice in contravention of the National Labor Relations Act.  In re D. R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (N.L.R.B. Jan. 3, 2012). 

Consumer Law & Policy Blog has a more detailed post on the Fifth Circuit opinion.

This development is of interest to those handling employment cases involving arbitration clauses with class action bans.  The California Court of Appeal considered and declined to follow the NLRB's decision in Iskanian v. CLS Transp. Los Angeles, LLC, 206 Cal.App.4th 949 (2012), Nelsen v. Legacy Partners Residential, Inc., 207 Cal.App.4th 1115 (2012), and other cases.

The California Supreme Court has granted review in Iskanian, so it is possible that Court may address this issue when it resolves that case.  Iskanian v. CLS Transportation, No. S204032 (review granted 09/19/12).  The briefing in the case was completed in July, and oral argument has not yet been set. 

Another new class certification opinion, this one construing Dukes: Williams v. Superior Court (Allstate Ins. Co.)

It has been an eventful couple of weeks in the development of California class action jurisprudence.  Jones v. Farmers was published on November 26, 2013; Hendleman v. Los Altos Apartments was depublished on the same day; and Martinez v. Joe's Crab Shack was published on December 4, 2013.

Then, last Friday, came Williams v. Superior Court (Allstate Ins. Co.), ___ Cal.App.4th ___ (Dec. 6, 2013).  In Williams, the Court of Appeal (Second Appellate District, Division Eight) reversed an order granting the defendant's motion for decertification, which the trial court had issued in the wake of Dukes. 

The case asserted overtime claims on behalf of non-exempt field insurance adjusters who were not compensated for time worked at the beginning and the end of the day.  Instead of tracking and paying for this time, Allstate's uniform policy was to assume that the adjusters did not begin working until the start time of the day's first field appointment.  Slip op. at 2-4.

Initially, in June 2010, the trial court granted class certification.  In June 2011, the U.S. Supreme Court handed down Dukes.  In July 2012, the trial court granted Allstate's motion to decertify the class.  Slip op. at 5-6.  The order reasoned that Dukes "has changed the law," and that "[a]fter Dukes, Allstate is entitled to litigate its defenses to each individual class member," including the defense that certain adjusters never worked unpaid overtime despite Allstate's uniform policy, as well as the defense that overtime worked by certain adjusters was de minimis.  Id. at 5 (quoting order at 1, 2). 

The plaintiff filed a writ petition, which the Court of Appeal summarily denied in October 2012.  Undiscouraged, he filed a review petition with the California Supreme Court, and in December 2012, that court issued a "grant and transfer" order, directing the Court of Appeal to consider the writ petition on the merits.  Williams v. Superior Court (Allstate Ins. Co.), No. S206441. 

As an initial matter, the Court of Appeal opinion summarizes the standards governing motions for decertification of a certified class, stressing the defendant's burden to show "a significant change in circumstances":

Decertification requires new law or newly discovered evidence showing changed circumstances.  (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1225.)  A motion for decertification is not an opportunity for a disgruntled class defendant to seek a do-over of its previously unsuccessful opposition to certification.  “Modifications of an original class ruling, including decertifications, typically occur in response to a significant change in circumstances, and ‘[i]n the absence of materially changed or clarified circumstances . . . courts should not condone a series of rearguments on the class issues.’  [Citation.].”  (Driver v. AppleIllinois, LLC (N.D. Ill., Mar. 2, 2012, No. 06 C 6149) 2012 WL 689169, *1 (Driver).)  “A class should be decertified ‘only where it is clear there exist changed circumstances making continued class action treatment improper.’ ”  (Green v. Obledo (1981) 29 Cal.3d 126, 147.)

Slip op. at 7 (emphasis added). 

Because the trial court relied wholly on Dukes in decertifying the class, the opinion discusses Dukes at length.  It is the first California appellate-level court to correctly acknowledge that the infamous "trial by formula" language of Dukes appeared in a section of Dukes addressing, first of all, Rule 23(b)(2) class actions (not (b)(3) cases), and, secondly, the unique statutory procedures of Title VII cases.  On the latter point, the opinion explains:

The Supreme Court’s second area of focus in Part III of Dukes involved the statutory affirmative defenses in the anti-discrimination statute Title VII.  Because the affirmative defenses were statutory, Dukes concluded a class proceeding could not deprive Wal-Mart of its right to present those defenses.  (Dukes, supra, 131 S.Ct. at pp. 2560-2561.)  As those affirmative defenses required individualized evidence, Dukes disapproved a “Trial by Formula” of Wal-Mart’s affirmative defenses because it prevented Wal-Mart from offering its individualized evidence.  (Id. at p. 2561.) 

Slip op. at 11 (emphasis added). 

This aspect of Dukes is something that I, and many other members of the plaintiffs' class action bar, have been trying to emphasize since Dukes was first handed down.  See, e.g., Kimberly A. Kralowec, “Dukes and Common Proof in California Class Actions,” 21 Competition 9, 11-12 (Summer 2012); Brief for Amicus Curiae National Employment Lawyers Association in Support of Appellees' Petition for Panel Rehearing, Wang v. Chinese Daily News, Inc., Nos. 08-55483 & 08-56740 (9th Cir. Mar. 28, 2013); Brief of Amicus Curiae California Employment Lawyers Association in Support of Respondents Sam Duran et al., Duran v. U.S. Bank Nat'l Assn., No. S200923 (Cal. May 8, 2013).

The panel then explained that the claim for unpaid overtime was properly certified for class treatment under the framework of Dukes itself, and that the claim should not have been decertified: 

At the certification stage, the concern is whether class members have raised a justiciable question applicable to all class members.  Although Allstate may have presented evidence that its official policies are lawful, “this showing does not end the inquiry.”  (Jimenez, supra, 2012 WL 1366052, *8.)  Here, the question is whether Allstate had a practice of not paying adjusters for off-the-clock time.  (Ibid.)  The answer to that question will apply to the entire class of adjusters.  If the answer to that question is “yes” – which is the answer the trial court initially assumed when it first certified the Off-the-Clock class, and is the answer we must presume in reviewing decertification (Brinker, supra, 53 Cal.4th at p. 1023) – then, in Duke’s [sic] phrase, that answer is the “glue” that binds all the class members.  (Dukes, supra, 131 S.Ct. at p. 2552 [a class requires the “glue” of a single answer for a question applicable to all class members].) 

Slip op. at 12 (emphasis added).

The panel then turned to, and rejected, Allstate's argument that certification should be denied because Allstate could show that some adjusters may not have worked any unpaid overtime: 

An unlawful practice may create commonality even if the practice affects class members differently.  “[C]lass treatment does not require that all class members have been equally affected by the challenged practices—it suffices that the issue of whether the practice itself was unlawful is common to all.”  (Jacks v. DirectSat USA, LLC (N.D. Ill. 2012) 2012 WL 2374444, *6 ....)  It may be true that some adjusters never worked off the clock, and such adjusters were thus not injured by Allstate’s practice of adjusters working off the clock.  But the existence of individuality as to damages does not defeat class certification.  (Jimenez, supra, 2012 WL 1366052, *19 [“[O]vertime claims may present a number of individualized questions, including whether individual employees worked off-the-clock.  [Citation.]  Nonetheless, courts have certified classes and allowed collective actions to proceed notwithstanding such circumstances. . . .  [¶]  Here, Plaintiffs allege a company-wide policy of discouraging and limiting overtime.”]; Espinoza v. 953 Assocs. LLC, supra, 280 F.R.D. at p. 130 [“Plaintiffs allege that Defendants failed to pay minimum wages and overtime compensation as a result of certain policies and practices.  Although plaintiffs’ claims may raise individualized questions regarding the number of hours worked and how much each employee was entitled to be paid, those differences go to the damages that each employee is owed, not to the common question of Defendants’ liability.”].)

Slip op. at 18-19 (emphasis added).

Achieving this result required some top-flight legal work by plaintiff's counsel. Sparking the interest of the California Supreme Court after the Court of Appeal summarily denied their writ petition was an especially impressive accomplishment.  Congratulations to Kevin Barnes, Gregg Lander and Jim Trush.  A copy of their successful petition for review can be downloaded at this link.

New Ninth Circuit CAFA opinion: Mondragon v. Capital One Auto Finance

In Mondragon v. Capital One Auto Finance, ___ F.3d ___ (9th Cir. Nov. 27, 2013), the Ninth Circuit considered the "local controversy" exception to federal jurisdiction under CAFA, and reversed the district court's remand order.

This passage is from the introduction:

We conclude that there must ordinarily be facts in evidence to support a finding that two-thirds of putative class members are local state citizens, which is one of the local controversy exception’s requirements, if that question is disputed before the district court. A pure inference regarding the citizenship of prospective class members may be sufficient if the class is defined as limited to citizens of the state in question, but otherwise such a finding should not be based on guesswork. In reaching this conclusion, we join the other circuits that have considered the issue.

Slip op. at 4 (emphasis added).  The court held that defining the class as all persons who "purchased a vehicle in California for personal use to be registered in the State of California" was not enough to support an evidentiary inference that two-thirds of the class members were California citizens, as the "local controversy" exception requires. Id. at 8-12.  The panel remanded to allow the plaintiff an opportunity to prove, as an evidentiary matter, that the exception applied.  Id. at 12-14.

The opinion did not address whether the plaintiff could simply opt to amend the class definition to include only California citizens. 

Another new class certification opinion: Martinez v. Joe's Crab Shack Holdings

In Martinez v. Joe's Crab Shack Holdings, ___ Cal.App.4th ___ (Nov. 11, 2013; pub. ord. Dec. 4, 2013), the Court of Appeal (Second Appellate District, Division Seven) reversed the trial court's order denying class certification in a wage and hour action.  Martinez is a misclassification case in which the defendant raised the executive exemption as a defense.  

Here is a line that stands out from the concluding section of the opinion:

[W]e understand from Brinker ... a renewed direction that class-wide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof.

Slip op. at 19.

Supreme Court depublishes class certification opinion: Hendleman v. Los Altos Apartments, L.P. (Updated)

Last week, the Supreme Court denied review but granted depublication in Hendleman v. Los Altos Apartments, No. S213598.

In Hendleman, the Court of Appeal (Second Appellate District, Division Three) affirmed an order denying class certification of claims by a group of tenants against their landlord for breach of the implied warranty of habitability (and other claims).  Hendleman v. Los Altos Apartments, L.P., 218 Cal.App.4th 1380 (2013), depublished.

My short original post on Hendleman is here.  I have not seen any of the depublication requests, so it's hard to say what caught the Supreme Court's attention.  If you have a copy of any of the requests, I would appreciate it if you would forward them.

UPDATE:  Many thanks to the blog reader who forwarded the depublication request filed by tenants' advocacy organization BASTA, Inc. 

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Another recent opinion construes the UCL in the foreclosure context: Lueras v. BAC Home Loans Servicing, LP

In Lueras v. BAC Home Loans Servicing, LP, ___ Cal.App.3d ___ (Oct. 31, 2013), the Court of Appeal reversed dismissal of the plaintiff's UCL and other claims stemming from an alleged wrongful foreclosure of his home.

The opinion's discussion of the UCL begins with standing, and holds that "[s]ale of a home through a foreclosure sale is certainly a deprivation of property to which a plaintiff has a cognizable claim."  Slip op. at 37.  Accordingly, the plaintiff had adequately alleged that he had "lost money or property" within the meaning of the UCL as construed in Kwikset.  Id.  The next question was whether the loss occurred "as a result of" something the bank had done wrong, rather than merely as a result of the plaintiff's own default on his loan repayment obligations.  See id. at 37-38.  The Court held that the plaintiff should be given an opportunity to amend the complaint to adequately allege causation:

We believe there is a reasonable possibility that Lueras can cure the defect in the First Amended Complaint.  As we explained in addressing the fraud cause of action, Bank of America informed Lueras any pending foreclosure sale would be “on hold” while he was being considered for other foreclosure avoidance programs.  Whitaker of Bank of America told him the May 5, 2011 letter was sent in error and he had been approved for a loan modification.  Lueras was told the foreclosure sale was to be rescheduled pending Fannie Mae’s approval of his loan modification.  Those allegations suggest Lueras can amend his UCL cause of action to allege Bank of America’s misrepresentations caused him to lose his home through foreclosure.  In addition, Lueras might be able to allege Bank of America did not work with him in good faith to evaluate and try to identify and implement a permanent solution, as a consequence of which he lost his home through foreclosure.

Slip op. at 38:

Next, without attempting to resolve the split in authority on the definition of "unfair" conduct, the Court held that several of the plaintiff's allegations were adequate to state a UCL claim (assuming the standing allegations were properly amended on remand):

It is fraudulent or unfair for a lender to proceed with foreclosure after informing a borrower he or she has been approved for a loan modification, or telling the borrower he or she will be contacted about other options and the borrower’s home will not be foreclosed on in the meantime, as represented in the May 5 letter.  It is fraudulent or unfair for a lender to misrepresent the status or date of a foreclosure sale.  In this case, Lueras alleged he contacted Bank of America about the May 6, 2011 letter, was informed he had already been approved for a loan modification, and was told the trustee’s sale, which had been rescheduled for May 18, 2011, would be reset pending approval by Fannie Mae of the loan modification.

Id. at 41-42.

New class certification opinion: Jones v. Farmers Ins. Exchange

In Jones v. Farmers Insurance Exchange, ___ Cal.App.4th ___ (Oct. 28, 2013; pub. ord. Nov. 26, 2013), the Court of Appeal (Second Appellate District, Division Three) reversed an order denying class certification of wage and hour claims.

The class certification motion rested on the existence of a uniform employment policy, namely, a policy of not compensating workers for required tasks performed before they clocked in for their shifts.  The Court of Appeal held that the wage and hour claims stemming from this policy should have been certified for class treatment, even though the record contained evidence that the policy was not always uniformly applied (or, put another way, that no such uniform policy existed).  That is because the court's focus in determining whether certification is proper should be on the plaintiffs' theory of recovery:

Plaintiffs’ theory of recovery is that Farmers applied a uniform policy to all putative class members denying them compensation for work performed at home before the beginning of their scheduled shifts.  The existence of such a policy is a factual question that is common to all class members and is amenable to class treatment.  Whether such a policy, if it exists, deprives employees of compensation for work for which they are entitled to compensation is a legal question that is common to all class members and is amenable to class treatment.  “Claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.  [Citations.]”  (Brinker, supra, 53 Cal.4th at p. 1033.)

Farmers argued in opposition to the class certification motion that it had no uniform policy denying compensation for preshift work and that individual issues predominated in determining whether APD claims representatives performed compensable off-the-clock work for which they were uncompensated.  It argued that such individual issues included determining what tasks each employee performed before the beginning of his or her shift, whether such activities were de minimis and whether the employee’s supervisor was aware of any off-the-clock work.  It filed declarations by APD claims representatives and others stating generally that they were not required to perform unpaid preshift work, that they requested and received approval to work overtime if necessary, and that the time required to start up their computers in the morning and access the ServicePower program was minimal.

Farmers’s evidence concerns the existence of a uniform policy denying compensation for preshift work, which is a common question amenable to class treatment, as we have stated.  Its evidence also goes to individual issues concerning the right to recover damages, which do not preclude class certification.  (Sav-On, supra, 34 Cal.4th at p. 334; Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 235, 237; Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301-1307 (Jaimez); Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1536.)

....

We conclude that the trial court applied improper criteria by focusing on individual issues concerning the right to recover damages rather than evaluating whether the theory of recovery is amenable to class treatment.  (Jaimez, supra, 181 Cal.App.4th at p. 1299 [“The trial court misapplied the criteria, focusing on the potential conflicting issues of fact or law on an individual basis, rather than evaluating ‘whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment’ ”].)  We also conclude that substantial evidence does not support the court’s finding that common issues do not predominate.  (Bluford v. Safeway, Inc. (2013) 216 Cal.App.4th 864, 871 [held that in light of the plaintiff’s theory of recovery based on uniform policies and procedures denying drivers compensation for rest periods, the trial court’s conclusion that common issues did not predominate was not supported by substantial evidence].)  Plaintiffs’ theory of recovery based on the existence of a uniform policy denying compensation for preshift work presents predominantly common issues of fact and law.  Farmers’s liability depends on the existence of such a uniform policy and its overall impact on its APD claims representatives, rather than individual damages determinations.  (Jaimez, supra, at p. 1300.)  Moreover, the trial court erred to the extent that its ruling was based on its evaluation of the merits of Plaintiffs’ claim as to the existence of such a uniform policy.  (Ibid.)

Slip op. at 12-15.