Date: 05-24-2017

Case Style: Laura Bartoni v. American Medical Response West

Case Number: A143784

Judge: J. Miller

Court: California Court of Appeals First Appellate District Division Two on appeal from the Superior Court, Alameda County

Plaintiff's Attorney: Aaron David Kaufmann, Theodore Franklin, Kimberly Ann Kralowec and Todd Michael Schneider

Defendant's Attorney: Michael Stuart Kun and Aaron Franklin Olsen

Description: Current and former employees of an ambulance service company sued their
employer, alleging that its meal and rest period policies violate California law. Their
complaint alleges claims on behalf of a proposed class as well as non-class claims
concerning those same meal and rest period policies under Labor Code section 2698 et
seq., the Private Attorneys General Act of 2004 (PAGA).
Before us is plaintiffs’ appeal of the trial court’s denial of their motion for class
certification. The appeal raises two issues. First, is the order denying class certification
appealable under the “death knell” doctrine, where plaintiffs’ PAGA claims remain
pending? Second, did the trial court err in denying class certification? We will exercise
our discretion to treat the appeal as a writ petition, and therefore we need not decide the
first question. We conclude that the trial court’s denial of class certification rests in part
on an incorrect legal assumption about the nature of rest periods, and therefore we will
remand part of the matter for further consideration.
2
FACTUAL AND PROCEDURAL BACKGROUND
Defendant American Medical Response West (AMR) provides ambulance services
in more than 15 Northern California counties, and employs dispatchers, call takers,
drivers, emergency medical technicians (EMT’s), paramedics and nurses. Plaintiffs are
four of AMR’s current or former employees: dispatcher Laura Bartoni, EMT Cameron
Francis, dispatcher and EMT Heather Murray, and EMT Jefferson Todd Willhoyte
(collectively, plaintiffs).
The gravamen of the operative Third Amended Complaint is that AMR failed to
provide the meal and rest periods to which plaintiffs are entitled under Labor Code
sections 226.7 and 512 and the applicable wage orders issued by the California Industrial
Welfare Commission (IWC).1
Plaintiffs allege three causes of action: first, a class claim
under the Labor Code; second, a class claim under Business and Professions Code section
17200 et seq., the Unfair Competition Law (UCL); and third, a claim for civil penalties
under PAGA.2
The PAGA cause of action is a representative action not subject to class
action requirements.3
(Arias v. Superior Court (2009) 46 Cal.4th 969, 975 (Arias).)
Plaintiffs moved to certify a class for their first two causes of action. The
proposed class includes AMR’s employees in various Northern California locations who

1
The IWC “is the state agency empowered to formulate wage orders governing
employment in California. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14
Cal.4th 557, 561.) The Legislature defunded the IWC in 2004, however its wage orders
remain in effect. (Huntington Memorial Hospital v. Superior Court (2005) 131
Cal.App.4th 893, 902, fn. 2.)” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40
Cal.4th 1094, 1102, fn. 4.) Wage and hour claims like the ones at issue here are governed
by the Labor Code and IWC wage orders. (See Brinker Restaurant Corp v. Superior
Court (2012) 53 Cal.4th 1004, 1026 (Brinker).) Plaintiffs bring their claims under
subdivisions 11 and 12 of Wage Order 9-2001, codified in the California Code of
Regulations at title 8, section 11090.
2
The Third Amended Complaint also alleged failure to pay overtime wages. The
overtime claims were dismissed with prejudice pursuant to stipulation.
3
PAGA claims may be brought as class actions, but need not be. (Arias, supra, 46
Cal.4th at p. 981 fn. 5.) Plaintiffs here have not alleged their PAGA claim as a class
action.
3
were covered by any of a succession of collective bargaining agreements from 2004
onward. Plaintiffs argued that these collective bargaining agreements contain
employment policies that apply to all class members, including a policy requiring class
members to remain on duty and subject to interruption during all meal periods, a policy
that does not permit off-duty rest periods, and policies that do not comply with
requirements for the accrual, timing, and duration of meal and rest periods.
The proposed class encompasses two subclasses: the Communication Center
Employee Subclass, which includes dispatchers and call takers, and the Field Employee
Subclass, which includes EMT’s, paramedics, nurses and drivers. We adopt the trial
court’s convention and refer to the Communication Center Employee Subclass as the
“Comm Center Class” and to the Field Employee Subclass as the “Field Employee
Class.”4 As of May 2013, AMR had identified approximately 400 potential members of
the Comm Center Class and 5,200 potential members of the Field Employees Class.

4
The Comm Center Class includes “[a]ll individuals currently or formerly
employed by [AMR] as dispatchers and/or call takers at any time from April 16, 2004,
until resolution of this action, on a full-time or part-time basis, in one or more of the
following Counties in California: Monterey, Tulare, Santa Cruz, Santa Clara, San Mateo,
Stanislaus (excluding Turlock Operations), Alameda, San Francisco, Contra Costa, San
Joaquin (excluding Tracy Operations), Calaveras, Marin, Solano, Sonoma, Yolo,
Sacramento, Placer, and Shasta.” Bartoni and Murray are proposed as representatives of
the Comm Center Class. From 1998 to November 2012, Bartoni worked as a dispatcher
at the Burlingame communications center, and Murray was employed from April 2000 to
some time before 2012 as a dispatcher at the Burlingame communications center.
The Field Employee Class includes “[a]ll individuals currently or formerly
employed by [AMR] at any time from June 23, 2004, until resolution of this action, on a
full-time or part-time basis, in one or more of the following positions and Counties in
California: [¶] [1] For the entire class period: [¶] EMT-1s, EMT-2s, EMT-Ps, Drivers,
and Wheelchair Van Drivers in Monterey, Tulare, Santa Cruz, Santa Clara, San Mateo
(excluding EMT-Ps), Stanislaus (excluding Turlock Operations), Alameda, San
Francisco, Contra Costa, San Joaquin (excluding Tracy Operations), Calaveras, Marin,
Solano, Sonoma, Yolo, Sacramento, Placer, and Shasta counties. [¶] [2] For the period
from July 1, 2006 to the end of the class period: [¶] EMT-1s and Paramedics in San
Benito County; [¶] CCTs and EMT/CCTs in Alameda, Contra Costa, San Mateo, and
Yolo Counties; [¶] Paramedic CCTs in Contra Costa, Monterey, Placer, Sacramento, San
Joaquin, Calaveras, and Santa Clara Counties; [¶] RNs and CCT/RNs employed in
4
Plaintiffs supported their motion with their own declarations, but not declarations
from any other potential class members; excerpts from the depositions of individuals
designated by AMR to testify as to various issues; copies of collective bargaining
agreements and agreements for on-duty meal periods; documents reflecting AMR’s
policies and procedures; excerpts from AMR’s responses to discovery requests; a printout
from AMR’s web site, and a stipulation about the use and contents of the on-duty meal
period agreement that class members signed.
5

AMR opposed plaintiffs’ motion on multiple grounds. Among other things, it
argued that plaintiffs failed to identify class-wide policies regarding meal and rest periods
that are consistently applied. AMR also argued that because the proposed classes include
field employees working in 18 different geographic operations and employees working in
5 different communications centers, which have different approaches to meal and rest

Alameda, Contra Costa, Monterey, Sacramento, Santa Clara, and Sonoma Counties.
[¶] [3] For the period from July 1, 2008 to the end of the class period: [¶] EMT-2s, EMTPs,
Drivers, and Wheelchair Van Drivers in San Benito County.” Francis, Murray and
Wilhoyte are proposed as representatives of the Field Employees Class. Francis was
employed from January 2002 to November 2009 as an EMT in Alameda County, Murray
was employed from sometime after April 2000 to April 2012 as an EMT based in Santa
Clara and Contra Costa Counties, and Willhoyte was employed from January 1987 until
at least December 2013 as an EMT.
Plaintiffs concede that they cannot represent employees who worked solely under
the collective bargaining agreement that has been in effect in Monterey since 2010.
5
The parties stipulated that throughout the class period, AMR’s practice was to
request that all putative class members sign on-duty meal period agreements with the
following language: “It is hereby agreed between [AMR] and the Employee signing
below that the nature of AMR’s business prevents Employee from being relieved of all
duty during meal periods. Accordingly, it is further agreed that Employee’s meal periods
shall be considered on-duty meal periods and shall be counted as time worked for all
purposes, including payment of regular and overtime compensation. [¶] I certify that I
have read and understand the above information and agree to these conditions of my pay.
I enter into this authorization and agreement freely and voluntarily. I understand that I
may revoke this agreement in writing at any time. Revocation will be effective from the
date received. I further understand, that the revocation of this agreement may limit my
scheduling opportunities as the nature of . . . AMR’s business prevents employees from
being relieved of all duty during meal periods.”
5
periods, plaintiffs cannot show that issues of law or fact common to the class
predominate, and therefore cannot establish the existence of a community of interest, a
requirement for class certification.
AMR presented declarations from potential class members who described their
varied experiences as to when and how they took meal and rest periods; deposition
testimony from the plaintiffs describing their experiences in taking meal and rest periods;
and declarations and policy documents describing the variety of operations and practices
across the 18 operating units and 5 communications centers covered by the proposed
class, including practices regarding meal and rest periods. At AMR’s request, the trial
court took judicial notice of orders denying class certification in other cases, including
cases filed against AMR, “but only as to the existence of these trial court decisions.” The
trial court also took judicial notice of materials prepared by the Division of Labor
Standards Enforcement (DLSE), which is the state agency empowered to enforce
California’s labor laws, including IWC wage orders. (Lab. Code, §§ 61, 95; Brinker,
supra, 53 Cal.4th at p. 1029, fn. 11.)
The trial court’s thorough and thoughtful consideration of the certification issues
here is shown in its request for supplemental briefing from the parties on the possible
impact on this case of Duran v. U.S. Bank National Association (2014) 59 Cal.4th 1
(Duran), which held that “[c]lass certification is appropriate only if . . . individual
questions can be managed with an appropriate trial plan.” (Id. at p. 27.) The trial court
also directed plaintiffs to present a proposed trial plan.
Then, after the parties submitted the material requested, the court requested further
supplemental briefing, and directed plaintiffs to “ ‘(1) clearly articulate each of AMR’s
policies that are being challenged in this action, (2) clearly articulate why and in what
way each of the challenged policies in unlawful, and (3) clearly articulate either (a) the
manner in which each of the challenged policies could be modified to make it lawful, or
(b) a lawful alternative policy that would be suitable to those of AMR’s operations in
which the putative members of both classes work.’ ” In response to this second request
for supplemental briefing, plaintiffs identified 11 policies.
6
The first is AMR’s uniform policy of providing only on-duty meal periods to
members of both classes. Plaintiffs argue that although California law requires off-duty
meal periods unless (a) the nature of the work prevents an employee from being relieved
of all duty, and (b) the parties have agreed in writing to an on-the-job paid meal period,
AMR uniformly, and improperly, requires all class members to sign on-duty meal period
agreements.
The second is AMR’s uniform requirement that members of both classes remain
“on duty” at all times. Plaintiffs arguing that this policy deprives class members of rest
periods, which must be “off duty.”
The remaining nine policies govern meal or rest periods and affect the Comm
Center Class (or a portion of it) or the Field Employee Class (or a portion of it), or both.
Plaintiffs characterize these as “uniform policies regarding number, duration and timing
of meal and rest periods,” and identify them in a chart they submitted to the trial court as
part of the supplemental briefing.
6

After a hearing, and after receiving further supplemental briefing from AMR, the
trial court denied class certification for plaintiffs’ causes of action under the Labor Code
and the UCL arising from the 11 identified policies.
7
The court found that plaintiffs
satisfied the numerosity and ascertainability requirements, but failed to satisfy the
community of interest requirement. With respect to the first two policies that plaintiffs
identified, described as “overarching policies” because the policies apply to all members
of both classes, the trial court rested its ruling on its conclusion that a meal or rest period
during which an employee remains “on call” but is not actually interrupted is properly

6 One of the nine policies, identified in plaintiffs’ chart as policy 11, pertains only
to class members in Monterey for the period starting in July 2010. Plaintiffs concede that
they cannot represent employees for these claims, which arise under a collective
bargaining agreement that never affected any of the four named plaintiffs.
7 AMR argues that plaintiffs did not ask the trial court to certify classes for their
claims for declaratory and injunctive relief under the UCL. This suggestion is belied by
the trial court’s order, which states, “Plaintiffs assert that because their UCL . . . claims
are derivative of their meal and rest break . . . claims, they too should be certified.”
7
characterized as an “off duty” period. As we discuss below, this conclusion was based on
an erroneous legal premise insofar as rest periods are concerned. With respect to the
remaining nine policies, the trial court concluded that plaintiffs had failed to identify any
policy that was uniformly applicable across either class. The court also determined “that
the inclusion or exclusion of certain employees from certain policies (e.g., Burlingame
Comm Center employees excluded from policy 10; policies 5 and 11 applicable only to
Monterey[8]
) raises questions of standing and adequacy of representation. In sum,
Plaintiffs have not established that any of their claims based on timing, duration and
accrual of rest or meal breaks may be adjudicated on a class wide basis. Individual issues
clearly predominate.”
Plaintiffs appealed, arguing that the order denying class certification is appealable
under the “death knell” doctrine because it terminates their class claims.
After plaintiffs filed their opening brief, AMR moved to dismiss the appeal,
relying on the recently-filed decision in Munoz v. Chipotle Mexican Grill, Inc. (2015) 238
Cal.App.4th 291, 310 (Munoz), in which the Court of Appeal held that an order denying
class certification was not appealable where representative PAGA claims remained
pending. We took the fully-briefed motion under submission to be decided with the
merits of the appeal.
AMR subsequently requested we take judicial notice of an unpublished opinion
dismissing appeal filed in Banta v. American Medical Response, Inc., Case No. B255239
(Banta) on February 22, 2016, and an order dismissing appeal filed in Karapetian v.
American Medical Response, Inc., Case No. BC405195 (Karapetian) on August 17,
2016. AMR explains that Banta and Karapetian were previously coordinated with
plaintiffs’ case at the trial court, all three cases involve claims that related companies did
not provide meal periods or rest periods in compliance with California law, and all the
complaints assert class claims as well as PAGA claims. The plaintiffs in Banta, like the

8
The trial court’s reference to policy 5 appears to be an error. Plaintiffs’ chart
states that policy 5 applies in Monterey and in other locations.
8
plaintiffs here, sought appellate review of a trial court order denying class certification.
The plaintiffs in Karapetian sought appellate review of an order decertifying classes. In
each case, the Court of Appeal dismissed the appeal, citing Munoz.
We took the unopposed requests under submission to decide with the merits of the
appeal and now deny them. The opinion and order in Banta and Karapetian are court
records, and we may take judicial notice of them as such pursuant to Evidence Code
section 452, subdivision (d)(1). But AMR does not ask us to take judicial notice of the
documents simply as court records. Instead, AMR argues that although the opinion and
order are “not binding,” they are “persuasive authority.” Under California Rules of
Court, rule 8.1115, we may not cite or rely on an unpublished opinion absent certain
exceptions, which do not apply here. Accordingly, we deny the requests for judicial
notice.
DISCUSSION
A. Appealability
1. Applicable Law
AMR’s motion to dismiss the appeal turns on the scope of the “death knell”
doctrine, by which a trial court decision denying class certification is appealable when its
impact is to strip a case of all but the plaintiff’s individual claims. (In re Baycol Cases I
and II (2011) 51 Cal.4th 751, 757 (Baycol).) The doctrine is an exception to the
fundamental principle of appellate practice, codified in Code of Civil Procedure section
904.1, that an appeal may be taken only from the final judgment in an entire action. (Id.
at p. 756.) Because an order denying class certification “effectively [rings] the death
knell for the class claims, we [treat] it as in essence a final judgment on those claims.”
(Id. at p. 757.) The death knell doctrine is “ ‘a tightly defined and narrow concept’ ” (Id.
at p. 760, quoting Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163
Cal.App.4th 1545, 1547) that depends on “the contrast between the continuing viability
of individual claims and the terminated status of absent class member claims.” (Baycol at
p. 760.) Two procedural circumstances underlie the rule: “first, that the appealed-from
order was the practical equivalent of a final judgment for some parties, and second, that
9
in the absence of our treating the order as a de facto final judgment, any appeal likely
would be foreclosed.” (Id. at p. 757.) Thus, the doctrine “require[s] an order that (1)
amounts to a de facto final judgment for absent plaintiffs, under circumstances where (2)
the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk
no formal final judgment will ever be entered.” (Id. at p. 759.)
The Court of Appeal analyzed the relationship between the death knell doctrine
and class and PAGA claims in Munoz, where plaintiffs alleged Labor Code, UCL and
PAGA claims arising from defendant’s taking improper deductions from employee
paychecks and providing improper pay stubs. (Munoz, supra, 238 Cal.App.4th at pp.
294-295.) The trial court denied plaintiffs’ motion to certify a class of about 26,000
current and former employees for the Labor Code and UCL claims, leaving plaintiffs
with their individual Labor Code and UCL claims, and their PAGA claims. (Id. at p.
294.) The Court of Appeal observed that the civil penalties available under PAGA are
substantial, and that a prevailing plaintiff may also recover attorney fees and costs, and
concluded that in a case where the alleged violator “has had many employees with
earnings over many pay periods, the recovery could be quite substantial.”9
(Id. at p. 311.)
Munoz was therefore unlike a case in which the denial of class certification leaves only
individual claims, where “recovery is too small to justify pursuing the action” to final
judgment. (Id. at p. 312.) The Munoz court concluded, “Given the potential for recovery
of significant civil penalties if the PAGA claims are successful, as well as attorney fees
and costs, plaintiffs have ample financial incentive to pursue the remaining representative
claims under . . . PAGA and, thereafter, pursue their appeal from the trial court’s order
denying class certification. Denial of class certification where the PAGA claims remain

9
The civil penalties available under PAGA are $100 “for each aggrieved
employee per pay period for the initial violation and [$200] for each aggrieved employee
per pay period for each subsequent violation.” (Lab. Code, § 2699, subd. (f)(2).)
Seventy-five percent of the penalties recovered are to be distributed to the Labor and
Workforce Development Agency, with the remaining 25percent distributed to the
aggrieved employees. (Lab. Code, § 2699, subd. (i).)
10
in the trial court would not have the ‘legal effect’ of a final judgment under the reasoning
of Baycol.” (Id. at p. 311.)
2. Analysis
AMR argues that the analysis of Munoz applies here, and that therefore plaintiffs’
appeal should be dismissed. Plaintiffs respond that Munoz is wrongly decided and
request that that we treat the appeal as a petition for writ of mandate if we are inclined to
grant the motion to dismiss. We need not decide whether the order challenged here is
appealable, because we will exercise our discretion to treat the appeal as a writ petition.
As we discuss below in Section B, the trial court’s ruling on class certification
rests in part on its erroneous determination of an issue that is central to the merits of
plaintiffs’ claims, including their claims under PAGA. We properly exercise our
discretion to treat an appeal from a nonappealable order as a petition for extraordinary
writ where the following conditions are met: “requiring the parties to wait for a final
judgment might lead to unnecessary trial proceedings, the briefs and record include in
substance the necessary elements for a proceeding for a writ of mandate, there is no
indication the trial court would appear as a party in a writ proceeding, [and] the
appealability of the order is not clear.” (H.D. Arnaiz, Ltd. v. County of San Joaquin
(2002) 96 Cal.App.4th 1357, 1367.) All those considerations are present here. The
record before us allows us to resolve the issue now. There is no indication the trial court
would be more than a nominal party to a writ proceeding. It was not clear whether the
order denying class certification was appealable, as Munoz was not decided until after
plaintiffs initiated this appeal. Most important, there will be needless delay and waste of
the parties’ and the courts’ time and resources if the appeal is dismissed and the case
proceeds in the trial court, only to have us later conclude that an erroneous ruling
underlies not only the denial of class certification, but also the determination of the
merits. (See Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 128 [listing some of the
factors to consider in evaluating the adequacy of the appellate remedy, including whether
the asserted error might “infect the trial”].) We conclude that writ review is appropriate.
11
B. Class Certification
1. Applicable Law
Class actions are authorized by statute “when the question is one of a common or
general interest of many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court.” (Code Civ. Proc., § 382.) As the party
advocating class treatment, plaintiffs “ ‘must demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of interest, and
substantial benefits from certification that render proceeding as a class superior to the
alternatives. [Citations.] “In turn, the ‘community of interest requirement embodies
three factors: (1) predominant common questions of law or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.’ ” ’ (Brinker[, supra,] 53 Cal.4th [at p.] 1021.)” (Ayala v.
Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 529-530 (Ayala).) In this case,
the primary issue on appeal is the presence or absence of predominant common
questions.
“[T]he ‘ultimate question’ for predominance is whether ‘the issues which may be
jointly tried, when compared with those requiring separate adjudication, are so numerous
or substantial that the maintenance of a class action would be advantageous to the judicial
process and to the litigants.’ (Collins v. Rocha (1972) 7 Cal.3d 232, 238; see Lockheed
Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104-1105, 1108.) ‘The answer
hinges on “whether the theory of recovery advanced by the proponents of certification is,
as an analytical matter, likely to prove amenable to class treatment.” (Sav-On [Drug
Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,] 327.) . . . “As a general rule if the
defendant’s liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their damages.”
[Citations.]’ (Brinker[, supra,] 53 Cal.4th [at pp.] 1021-1022; see also Employment
Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266; Vasquez v. Superior
Court (1971) 4 Cal.3d 800, 809.) However, . . . class treatment is not appropriate ‘if
every member of the alleged class would be required to litigate numerous and substantial
12
questions determining his individual right to recover following the “class judgment” ’ on
common issues. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)”
(Duran, supra, 59 Cal.4th at p. 28.) “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.” (Brinker, supra, 53 Cal.4th
at p. 1033.)
But “predominance of common issues is . . . not the only consideration. In
certifying a class action, the court must also conclude that litigation of individual issues,
including those arising from affirmative defenses, can be managed fairly and efficiently.
(Washington Mutual [Bank. v. Superior Court (2001)] 24 Cal.4th [906,] 922-923.)
‘[W]hether in a given case affirmative defenses should lead a court to approve or reject
certification will hinge on the manageability of any individual issues. [Citation.]’
(Brinker, [supra, 53 Cal.4th] at p. 1054 (conc. opn. of Werdegar, J.).) . . . [W]here a party
seeks class certification based on allegations that the employer consistently imposed a
uniform policy or de facto practice on class members, the party must still demonstrate
that the illegal effects of this conduct can be proven efficiently and manageably within a
class setting. (Brinker, [supra, 53 Cal.4th] at p. 1033; Daily v. Sears, Roebuck & Co.
(2013) 214 Cal.App.4th 974, 989.)” (Duran, supra, 59 Cal.4th at pp. 28-29.)
“Presented with a class certification motion, a trial court must examine the
plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to
be presented, and decide whether individual or common issues predominate. To the
extent the propriety of certification depends upon disputed threshold legal or factual
questions, a court may, and indeed must, resolve them.” (Brinker, supra, 53 Cal.4th at p.
1025.)
We review a trial court’s ruling on class certification for abuse of discretion.
(Brinker, supra, 53 Cal.4th at p. 1017; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
435 (Linder) [“[b]ecause trial courts are ideally situated to evaluate the efficiencies and
practicalities of permitting group action, they are afforded great discretion in granting or
denying certification”].) We will not disturb the ruling “ ‘unless (1) it is unsupported by
13
substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal
assumptions.’ ” (Brinker, supra, 53 Cal.4th at p. 1022.) “We review the trial court’s
actual reasons for granting or denying certification; if they are erroneous, we must
reverse, whether or not other reasons not relied upon might have supported the ruling.”
(Ayala, supra, 59 Cal.4th at p. 530, citing Linder, supra, 23 Cal.4th at p. 436.) “ ‘Any
valid pertinent reason stated will be sufficient to uphold the order.’ ” (Linder, supra, 23
Cal.4th at p. 436, quoting Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644,
656.)
2. Analysis
Because the trial court’s ruling on class certification addresses the merits of
plaintiffs’ legal claims, we begin our analysis with background on the law requiring
employers to provide meal and rest periods to their employees.
a. The Obligation to Provide Meal and Rest Periods
California employers must provide meal periods of at least 30 minutes to
employees who work more than five hours per day, except that if a work period of six
hours or less will complete the day’s work, the meal period may be waived by mutual
agreement of employer and employee. (Lab. Code,10 § 512, subd. (a); Cal. Code Regs.,
tit. 8, § 11090, subd. (11)(A).) Employers must provide a second meal period of at least
30 minutes to employees who work more than 10 hours per day, except that if the total
hours worked is 12 or less and the first meal period has not been waived, the second meal
period may be waived by mutual agreement of employer and employee. (§ 512, subd.
(a); Cal. Code Regs., tit. 8, § 11090, subd. (11)(B).)
Employers may not require employees to work during those meal periods.
(§ 226.7, subd. (a).
11) “Unless the employee is relieved of all duty during a 30 minute

10 Subsequent statutory references are to the Labor Code unless otherwise stated.
11 Here and elsewhere, we refer to section 226.7 as originally enacted. (Stats.
2000, ch. 876, § 7.) Section 226.7 has been amended twice since plaintiffs filed their
complaint, but the revisions are not relevant here. (Stats. 2013, ch. 719, § 1; Stats. 2014,
ch. 72, § 1.)
14
meal period, the meal period shall be considered an ‘on duty’ meal period and counted as
time worked. An ‘on duty’ meal period shall be permitted only when the nature of the
work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The written
agreement shall state that the employee may, in writing, revoke the agreement at any
time.” (Cal. Code Regs., tit. 8, § 11090, subd. (11)(C).) Thus, “[a]bsent circumstances
permitting an on-duty meal period, an employer’s obligation is to provide an off duty
meal period: an uninterrupted 30-minute period during which the employee is relieved of
all duty.” (Brinker, supra, 53 Cal.4th at p. 1035 [construing Cal. Code Regs., tit 8,
§ 11050, subd. (11)(A), which contains the same language as Cal. Code Regs., tit. 8,
§ 11090, subd. (11)(C)].) “The employer satisfies this obligation if it relieves its
employees of all duty, relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or
discourage them from doing so. What will suffice may vary from industry to industry.”
(Brinker at p. 1040.) If an employer does not provide a meal period as required, the
employer must pay the employee an hour of pay at the employee’s regular hourly rate for
each workday that the meal period is not provided. (§ 226.7, subd. (b); Cal. Code Regs.,
tit. 8, § 11090, subd. (11)(D).)
California law requires employers to provide employees who work at least three
and one-half hours with paid rest periods at the rate of 10 minutes rest time for every four
hours “or major fraction thereof” of work. (Cal. Code Regs., tit. 8, § 11090, subd.
(12)(A).) Rest periods count as time worked (ibid.), but employers may not require
employees to work during those rest periods. (§ 226.7, subd. (a).)
In Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 264 (Augustus),
our Supreme Court recently interpreted the rest period requirement for security guards,
which is defined by the same wage order at issue here.12
(Cal. Code Regs., tit. 8,

12 Augustus interpreted IWC Wage Order 4-2001, codified in subdivision 12 of
California Code of Regulations, title 8, section 11040. (Augustus, supra, 2 Cal.5th at p.
260.)
15
§ 11090, subd. (12).) In Augustus, the Supreme Court addressed two questions. First, the
court asked whether the wage order requires employers to provide employees with offduty
rest periods, defined as “time during which an employee is relieved from all workrelated
duties and free from employer control.” (Augustus, supra, 2 Cal.5th at p. 264.)
The court answered that question in the affirmative. (Id. at p. 269.) Second, the court
asked whether an employer can satisfy its obligation to provide an off-duty rest period
when it requires employees to remain on call, and concluded that the answer is no.
(Ibid.)
The court noted that the length of a required rest period, 10 minutes, “impose[s]
practical limitations on an employee’s movement” during that time: “[D]uring a rest
period an employee generally can travel at most five minutes from a work post before
returning to make it back on time. Thus, one would expect that employees will ordinarily
have to remain onsite or nearby. This constraint, . . . common to all rest periods, is not
sufficient to establish employer control. But now add to this state of affairs the additional
constraints imposed by on-call arrangements. Whatever else being on call entails in the
context of a required rest break, that status compels employees to remain at the ready and
capable of being summoned to action (see e.g. Mendiola [v. CPS Security Solutions, Inc.
(2015)] 60 Cal.4th [833,] 837.) Employees forced to remain on call during a 10-minute
rest period must fulfill certain duties: carrying a device or otherwise making
arrangements so the employer can reach the employee during a break, responding when
the employer seeks contact with the employee, and performing other work if the
employer so requests. These obligations are irreconcilable with employees’ retention of
freedom to use rest periods for their own purposes. (Morillon v. Royal Packing Co.
(2000) 22 Cal.4th 575, 586.)” (Augustus, supra, 2 Cal.5th at p. 270.) Therefore, during
rest periods, an employer must “relinquish any control over how employees spend their
break time, and relieve their employees of all duties—including the obligation that an
16
employee remain on call.”
13
(Id. at p. 273.) If an employer does not provide a rest period
as required, the employer must pay the employee an hour of pay at the employee’s
regular hourly rate for each workday that the rest period is not provided. (§ 226.7, subd.
(b); Cal. Code Regs., tit. 8, § 11090, subd. (12)(B).)
b. AMR’s Overarching Meal and Rest Period Policies
The trial court believed that “in order to determine whether the lawfulness of
AMR’s overarching meal and rest break policies can be established on a class wide basis,
it must resolve” a preliminary legal issue, specifically, “whether a break during which an
employee remains ‘on call’ can ever be in compliance with the applicable sections of the
Labor Code and the IWC Wage Orders.” The trial court drew on authority that there is
nothing inherently illegal about a “ ‘blanket agreement for on-duty meal periods . . . so
long as the conditions necessary to establish that the nature of the employee’s work
prevents the employee from being relieved of all duty are met for each applicable on-duty
meal period taken.’ ” (DLSE Opinion Letter, June 9, 2009, p. 9.14) From that, the trial
court concluded that a “meal break or a rest break may be legally compliant even if the

13 Our Supreme Court emphasized that Augustus does not prohibit an employer
from recalling employees while they are on rest breaks should it be necessary, and stated
that “[n]othing in our holding circumscribes an employer’s ability to reasonably
reschedule a rest period when the need arises.” (Augustus, supra, 2 Cal.5th at p. 271.)
The Supreme Court observed that “employers who find it especially burdensome to
relieve their employees of all duties during rest periods—including the duty to remain on
call” could provide another rest period to replace the one that was interrupted, or pay the
employee the premium set forth in the applicable wage order and section 226.7. (Id. at p.
272.) These “options should be the exception rather than the rule,” so any “employer
[who] seeks to be excused generally from compliance” with the rest period requirement
should request an exemption from the DLSE. (Id. at p. 272, fn. 14; see Cal. Code Regs.,
tit 8, § 11090, subd. (17) [authorizing applications for exemption from rest period
requirements of subdivision (12)].)
14 The trial court took judicial notice of this opinion letter on its own motion.
Although DLSE opinion letters are not controlling upon the courts, they “constitute a
body of experience and informed judgment to which courts and litigants may properly
resort for guidance.” (Brinker, supra, 53 Cal.4th at p. 1029, fn. 11, internal quotation
marks omitted.)
17
employee remains ‘on call’ during the break.” (Italics added.) The trial court then went
further, and without citing any authority, concluded that “if a break is not actually
interrupted, then it may properly be characterized as ‘off-duty’ if it otherwise meets the
criteria set forth in the applicable Wage Orders.” The court concluded that this
interpretation of off-duty meal and rest breaks was “reasonable as applied to the work
performed by the putative class members in this case.”
Plaintiffs argue that the trial court’s conclusions as to predominance rest on
erroneous assumptions about the characteristics of off-duty meal and rest periods.
i. Meal Periods
Our Supreme Court has held that an employer satisfies its obligation to provide
meal periods “if it relieves its employees of all duty, relinquishes control over their
activities and permits them a reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage them from doing so. What will suffice may
vary from industry to industry.” (Brinker, supra, 53 Cal.4th at p. 1040.) Furthermore,
“the issue of different industry practices is a factual determination.” (Driscoll v. Granite
Rock Co. (2016) 6 Cal.App.5th 215, 224.) The DLSE has opined that an employee
required to carry a pager has a duty-free meal period for purposes of compensation unless
he or she “responds, as required, to a pager call during the meal period.” (DLSE Opinion
Letter, Jan. 28, 1992, p. 3.) Accordingly, the trial court appropriately rejected plaintiffs’
view that an on-call meal period is necessarily “on-duty” for purposes of the wage and
hour laws. Thus we disagree with plaintiffs’ contention that the trial court’s denial of
class certification as to the overarching meal period policy relied on an erroneous legal
assumption.
The trial court reasoned that to determine whether AMR’s meal break policy is
lawful, the court must determine “whether there is a valid on-duty meal break agreement
[and] also the circumstances in which any such agreement is invoked to justify an
interruption.” AMR came forward with evidence to show that employees in different
operations are dispatched and take meal periods in different ways. As a result, substantial
evidence supports the trial court’s conclusion that individual inquiries would be
18
necessary to determine which particular meal breaks were uninterrupted (and thus offduty)
and which were interrupted (and thus on-duty), and then, as to the interrupted
periods, whether the necessary conditions were met to establish that the nature of the
work prevented the employee from being relieved of all duty. Substantial evidence also
supports the trial court’s conclusion that these individual inquiries would predominate
over common inquiries, and therefore that the overarching meal period policy should not
be adjudicated on a class-wide basis.
Plaintiffs argue that this case is like Faulkinbury v. Boyd & Associates, Inc. (2013)
216 Cal.App.4th 220, 232-233 (Faulkinbury), in which a potential class of security
guards presented evidence that their employer required all class members to sign on-duty
meal period agreements and to take on-duty meal breaks, regardless of the job duties or
locations where they worked. The Court of Appeal reversed a trial court order denying
class certification, and remanded with directions to grant plaintiffs’ class certification
motion. (Id. at p. 241.) In Faulkinbury, the Court of Appeal concluded that “[t]he
lawfulness of [defendant’s] policy of requiring all security guard employees to sign the
on-duty meal break agreement can be determined on a classwide basis.” (Id. at p. 233.)
The Court of Appeal further concluded “by requiring blanket off-duty meal break waivers
in advance from all security guard employees, regardless of the working conditions at a
particular station, [defendant] treated the off-duty meal break issue on a classwide basis.”
(Id. at p. 234.)
We agree with the trial court here that plaintiffs’ case is distinguishable from
Faulkinbury. There, the evidence showed that the employer’s policy was consistently
implemented such that employees were never “given a 30-minute, uninterrupted, off-duty
meal period,” (Faulkinbury, supra, 216 Cal.App.4th at p. 225.) while the evidence here is
that AMR’s operating units have different approaches to meal periods, and that AMR
employees have received uninterrupted breaks of 30-minutes or more. The only
similarity with Faulkinbury is the existence of a policy that employees sign on-duty meal
period agreements, which does not in itself violate the law.
19
Here, in addition to concluding that individual issues predominate, the trial court’s
order expressed a second reason for denying class certification as to the overarching meal
break policy. The court wrote that “[p]laintiffs failed to present a credible trial plan” that
would allow individual inquiries to be developed in a manageable way. The lack of a
credible trial plan is another ground to uphold the trial court’s order denying certification
as to the overarching meal period claim. (Duran, supra, 59 Cal.4th at p. 32.)
ii. Rest Periods
In its brief discussion of plaintiffs’ overarching rest period claim, the trial court
framed the issue as follows: “Here, Plaintiffs assert that AMR’s policy was for rest
breaks to be taken ‘on-duty,’ i.e., during periods subject to ‘downtime’ control.[15]
In
other words, Plaintiffs’ theory of liability similarly rests on the concept that a rest break is
not ‘off-duty’ if the employee remains ‘on-call.’ As the court concluded in connection
with the meal period claims, this theory is fundamentally flawed, and cannot support the
conclusion that a uniform unlawful policy applied to the entire class. . . . [W]ithout a
basis for a finding of uniformity, all rest break claims devolve to individual inquiries.”
The trial court reached this conclusion without the benefit of our Supreme Court’s
decision in Augustus, which holds that on-call time is not off-duty and is not a rest period
under California law.16
(Augustus, supra, 2 Cal.5th at pp. 269.) Because the trial court’s
decision to deny class certification with respect to AMR’s overarching rest period policy
rests on its legal conclusion that a rest period during which an employee remains on call
may be considered an off-duty rest period, and because that conclusion is incorrect under
Augustus, we must reverse and remand even if other reasons not relied upon might
support the trial court’s decision. (Ayala, supra, 59 Cal.4th at p. 530.)

15 AMR submitted declarations from employees who stated that they do not have
scheduled rest periods, but rather have periods of downtime during which they can
engage in personal activities.
16 In a focus letter, we asked the parties to be prepared to address at oral argument
how Augustus applies to this case, which they did.
20
We recognize that there may well be other bases on which the trial court may
conclude on remand that plaintiffs have not shown the predominance of common issues
required for class certification of their overarching rest period claim. For example,
although plaintiffs presented evidence that AMR’s policy is for employees to be on-call
during rest periods, and that AMR has no policy or practice of paying additional
compensation to employees who are not provided a rest period, as required by the wage
order (Cal. Code Regs., tit. 8, § 11090, subd. (12)(A)), AMR presented evidence that
different policies and practices have applied at different times and places and to different
types of employees.
In any event, we will vacate the trial court’s order insofar as it applies to the
overarching rest period policy and we leave the question whether to certify the
overarching rest break claims to the trial court on remand.
c. AMR’s Other Meal and Rest Period Policies
We turn now to the trial court’s denial of class certification with respect to nine
other AMR meal and rest period policies, which plaintiffs contend are reflected in
collective bargaining agreements and are “facially non-compliant with California law
governing timing, duration, and accrual” of meal and rest periods. Plaintiffs argue that
these “uniform policies,” which they numbered 3 through 11 and identified in a chart,
violate the law independent of AMR’s overarching policies. Plaintiffs concede that they
cannot represent employees affected by policy 11, which applies only to AMR’s
employees in Monterey starting in July 2010. This leaves eight policies, numbered 3
through 10, at issue on appeal.
The trial court’s reason for denying certification was that plaintiffs failed to
identify “any policy . . . that is uniformly applicable across either class,” and therefore
did not establish that their claims can be adjudicated on a class-wide basis and did not
show that common issues predominate. In addition, the trial court questioned whether
plaintiffs had demonstrated standing and adequacy of representation for those claims.
In arguing that the trial court erred, plaintiffs do not discuss the nine policies
individually, nor do they urge us to consider the policies individually. They do not
21
challenge the trial court’s finding that none of the policies is uniform as to either class.
Instead, plaintiffs advance two arguments to support their view that the trial court erred in
denying class certification, but neither of them has merit. First, plaintiffs argue that the
trial court erroneously assumed that for a class to be certified, all class members’ claims
must be uniform. This argument mischaracterizes the trial court’s ruling. The trial court
stated that class members’ claims must rest on a uniform policy, not that the claims must
be uniform. The trial court’s inquiry on class certification necessarily considers how
plaintiffs will show AMR’s potential liability to a class. Plaintiffs’ argument, however,
rests on case law that addresses damages, rather than liability. Plaintiffs cite Sav-On
Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th 319 (Sav-on Drug), for the
proposition that class certification does not require that the “class members’ claims be
uniform or identical.” (Id. at p. 338.) That our Supreme Court in Sav-on Drug was
referring to questions of damages is clear from its citation to Vasquez v. Superior Court
(1971) 4 Cal.3d 800 (Vasquez) to support the statement and its including a pertinent
quotation from Vasquez: “ ‘a community of interest does not depend upon an identical
recovery.’ ” (Sav-on Drug, supra, 34 Cal.4th at p. 338, quoting Vasquez, supra, 4 Cal.3d
at p. 809.) The trial court concluded that plaintiffs failed to identify a uniform policy,
and plaintiffs do not argue otherwise. Indeed, they appear to concede that none of the
policies covers the entirety of either of the subclasses they have proposed.
Second, plaintiffs argue that substantial evidence does not support the trial court’s
conclusion that the creation of subclasses would not permit effective management of
proceedings concerning the allegedly improper policies. Plaintiffs contend that the trial
court has the obligation to “consider and certify subclasses when that will ‘facilitate class
treatment’ or one or more parts of the case,” even if the class proponent has not moved
for subclasses. The trial court here fulfilled that obligation by considering subclasses,
and concluding that class treatment was not appropriate on the record before it. On its
own motion, the trial court considered whether plaintiffs’ “chart might provide a basis for
identifying some narrower class or classes (e.g., all Field Employees in Burlingame or all
employees subject to a particular [collective bargaining agreement]) and allowing
22
Plaintiffs to certify such a class or classes and proceed on that basis. Unfortunately,
Plaintiffs did not develop a record in a manner that would allow the court to assess the
viability of one or more such narrower classes, to identify which Plaintiffs would be in a
position to represent that narrower class(es) and to determine whether with respect to that
narrower class(es) common issues would predominate.”
Furthermore, at the hearing on plaintiffs’ motion, the trial court asked plaintiffs’
counsel whether additional subclasses would be required for the court to properly address
the policies raised in plaintiffs’ chart, and whether the named plaintiffs were affected by
each of the policies. Plaintiffs’ counsel said that additional subclasses were not needed,
and that no additional class representatives would be required. Although the trial court
specifically inquired whether the named plaintiffs had standing to raise certain claims,
plaintiffs’ counsel never identified which plaintiff(s) could be a representative for which
subclass. Plaintiffs assert that “[t]he record shows that the group of proposed class
representatives worked under all three of the CBAs as field staff and/or dispatchers. This
means that at least one plaintiff is typical and adequate to represent a class or narrowed
subclass on each of the nine policies.” This assertion does not suffice to show that
plaintiffs have met their burden to establish the predominant common questions and
appropriate class representatives that are required to demonstrate a community of interest.
(Brinker, supra, 53 Cal.4th at p. 1021.) For example, plaintiffs contend that a class of
Comm Center employees, excluding those in Burlingame, has claims arising from a
collective bargaining agreement that is silent as to rest periods “except to provide ‘the
opportunity to take breaks as operationally feasible.’ ” Yet plaintiffs have failed to
identify any representative for such a class of Comm Center employees. They have
proposed Bartoni and Murray as the sole class representatives for the Comm Center
Class. The only communications center at which either of them worked was in
Burlingame, which means they are excluded from any subclass that might assert claims
from this particular policy. As the trial court noted, this “raises questions of standing and
adequacy of representation,” which plaintiffs failed to address below, and likewise fail to
address here.
23
On this record, we conclude that the trial court did not abuse its discretion in
declining to certify a class, or classes, with respect to the nine AMR policies that
plaintiffs identified in their chart.

Outcome: AMR’s requests for judicial notice are denied. AMR’s motion to dismiss the
appeal is denied, and plaintiffs’ appeal from the order denying the motion for class certification, which has been fully briefed, is deemed a petition for writ of mandate. Let a peremptory writ of mandate issue commanding the superior court to vacate the portion of its order denying class certification for plaintiffs’ claims under the Labor Code and the UCL that AMR failed to provide off-duty rest periods (plaintiffs’ “overarching” rest period claims). The cause is remanded to the trial court for further proceedings consistent with this opinion. The parties shall bear their own costs in this proceeding.

Plaintiff's Experts:

Defendant's Experts:

Comments: