The UCL Practitioner

A third new Ninth Circuit opinion addresses class certification: Alcantar v. Hobart Service

The Ninth Circuit has issued quite a few new class certification opinions recently.  In a third recent opinion, Alcantar v. Hobart Service, ___ F.3d ___ (9th Cir. Sept. 3, 2015), the Court reversed in part an order denying class certification in a wage and hour action.   The action alleged that the defendant violated the Labor Code and the UCL by not compensating employees for "the time they spent commuting in [the employer]’s service vehicles from their homes to their job sites and from those job sites back home."  Slip op. at 4.

Among other things, the Court held that the district court erred by requiring, as a prerequisite to certification, proof that the defendant maintained a "uniform policy requiring technicians to commute in the service vehicles."  Id. at 12. Whether such a policy exists is a merits question, and the district court improperly reached it at the certification stage.  Id. at 12-13 (citing Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1191, 1197 (2013)). 

The opinion upheld the trial court's order denying class certification of related meal period and rest break claims.  Citing no authority other than Rule 23, the opinion states that the denial was within the district court's discretion "because questions as to why service technicians missed their meal and rest breaks, whether because of their employer’s failure to provide them or their own choice to forgo them, would predominate over questions common to the class."  Slip op. at 13-14.  This conclusion, unfortunately, is wholly inconsistent with the legal standard articulated by the California Supreme Court for meal periods in Brinker.  For citations to opinions that correctly apply Brinker, see this link. 

In the next section of the opinion, the Court applied the Morillion "control" test in holding that the trial court erred by granting summary judgment in the defendant's favor on the commute time claim.  Slip op. at 14-18.  One justice dissented from this portion of the opinion.  Id. at 22-31.  In the final section, the Court held that the trial court properly granted summary judgment in defendant's favor on the derivative PAGA claim because the PAGA notice letter was inadequate.  Id. at 19-22.

Another recent Ninth Circuit class certification opinion: Bobbitt v. Milberg LLP

In Bobbitt v. Milberg LLP, ___ F.3d ___ (9th Cir. Sept. 10, 2015), the Ninth Circuit reversed an order denying class certification of legal malpractice claims against several law firms and attorneys.  The panel held that Arizona law governed the claims, and that the district court erred in holding that different states' laws applied depending on each class member's domicile.  Slip op. at 8-12.

New Ninth Circuit class certification opinion: Pulaski & Middleman, LLC v. Google, Inc.

In Pulaski & Middleman, LLC v. Google, Inc., ___ F.3d ___ (9th Cir. Sept. 21, 2015), the Ninth Circuit reversed an order denying class certification of UCL and FAL claims.

Consistent with its earlier opinions Stearns and Yokoyama, as well as the California Supreme Court's Tobacco II opinion, the Court held that variations in the amount of recoverable restitution do not defeat class certification.  Slip op. at 10-17 (citing Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011); Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010); In re Tobacco II Cases, 46 Cal.4th 298 (2009)). 

Rather, "restitution is available on a classwide basis once the class representative makes the threshold showing of liability under the UCL and FAL."  Id. at 14.  That "threshold showing" requires proof only that "members of the public are likely to be deceived" by the defendant's conduct.  Id. at 11 (quoting Tobacco II, 46 Cal.4th at 312).

The Court also held (as it had done previously in Leyva and Jimenez) that "differences in damage calculations do not defeat class certification," even after the U.S. Supreme Court's Comcast opinion.  Slip op. at 17 (citing Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013); Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014); Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013)).

Finally, the Court held that the plaintiffs' proposed method for calculating restitution was not "arbitrary."  Slip op. at 18-20.  This section of the opinion contains an interesting discussion of the different possible ways to measure restitution under the UCL, and considers both Colgan v. Leatherman Tool Group, 135 Cal.App.4th 663 (2006) (see this blog post) and Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310 (2011).