Merits determination at class certification stage: Palacio v. Jan & Gail's Care Homes, Inc.

I'm catching up on opinions of interest handed down during my blogging hiatus.  Here's a decision from last December.

In Palacio v. Jan & Gail's Care Homes, Inc., 242 Cal.App.4th 1133 (Dec. 7, 2015), a wage and hour case, the trial court denied class certification after holding that the plaintiff had not proven a uniform unlawful policy -- because the alleged policy was not unlawful.  Id. at 1137.  The Court of Appeal affirmed this merits determination and the ensuing order denying class certification.  Id. at 1138. 

The opinion does not mention the long-established general rule that merits questions should not be considered at the certification stage, and that courts should instead "assum[e] for purposes of the certification motion that any claims have merit."  Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1023 (2012).  Evidently, the plaintiffs did not raise this argument on appeal, perhaps for strategic reasons.  Sometimes, if you're going to lose your case on the merits, it's better to find that out early.

The merits question considered by the Court of Appeal involved employees of a 24-hour residential care facility governed by Wage Order 5.  Under paragraph 11(E), such facilities may require on-duty meal periods if certain conditions are met, but these facilities need not also comply with paragraph 11(A), a "general provision" that governs agreed on-duty meal periods, not required ones.  Palacio, 242 Cal.App.4th at 1138-41.