Roberto Martinez v. Landry's Restaurants, Inc.

Roberto Martinez, Lisa Saldana, Craig Eriksen and Chanel

Rankin-Stephens (collectively Martinez parties) sued Crab

Addison, Inc., Ignite Restaurant Group, Inc. (formerly known as

Joe’s Crab Shack Holdings, Inc.) and Landry’s Restaurants, Inc.

on behalf of a putative class of salaried employees of Joe’s Crab

Shack restaurants in California who were allegedly misclassified

as exempt managerial/executive employees and unlawfully

denied overtime pay. On August 3, 2016 the trial court granted a

motion to dismiss pursuant to Code of Civil Procedure

sections 583.310 and 583.360,1 finding the Martinez parties had

failed to bring their lawsuit to trial within five years, as

extended. On appeal the Martinez parties argue the court

abused its discretion in refusing to exclude from its calculation of

the mandatory five-year period 319 days during which a writ

petition challenging that court’s order to produce the names and

contact information for putative class members was pending (see

Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958

(Joe’s Crab Shack I)), 169 days between the notice of remand

following removal of the case to United States District Court and

the Ninth Circuit’s order affirming the District Court’s remand,

and a nine-month period between the court’s order granting the

Martinez parties’ motion to compel production of electronically

stored information and full compliance with that order. We

affirm.



1

Statutory references are to this code.

3

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties

a. The Martinez parties

Martinez, Saldana, Eriksen and Rankin-Stephens are

current or former employees of Joe’s Crab Shack restaurants in

California. Martinez filed the original complaint in this lawsuit

on September 7, 2007, seeking to represent a class of salaried

Joe’s Crab Shack employees on claims they had been

misclassified as exempt managerial/executive employees and

were entitled to overtime pay. The complaint also alleged meal

period, rest period and wage statement claims.

In March 2010 the trial court denied Martinez’s motion for

class certification on the ground he was not an adequate class

representative. Martinez did not appeal that order. The trial

court permitted Saldana, Eriksen and Rankin-Stephens to join

the lawsuit as named plaintiffs and putative class

representatives.

b. The restaurant entities

The only defendant named in Martinez’s complaint was

“Joe’s Crab Shack, Inc.,” a nonexistent entity, plus 50 Doe

defendants. Eventually, the named defendants were Landry’s

Restaurants, Inc., which owned the Joe’s Crab Shack restaurant

chain through November 16, 2006; Crab Addison, Inc., which

owned the chain during the proceedings in the trial court; and

Ignite Restaurant Group, Inc. (formerly known as Joe’s Crab

Shack Holdings, Inc.), Crab Addison, Inc.’s parent.

On June 15, 2017, while this appeal was pending, we were

notified by counsel that on June 6, 2017 Ignite Restaurant Group,

Inc. and Crab Addison, Inc. had filed voluntary petitions for relief

under Chapter 11 of the United States Bankruptcy Code in the

4

United States Bankruptcy Court for the Southern District of

Texas. On June 29, 2017 we stayed the case as to those two

parties, but directed it proceed as to Landry’s Restaurants. In a

status report filed June 28, 2018 counsel for the Martinez parties

advised the court that they had filed proofs of claim in the

bankruptcy proceedings against Ignite Restaurant Group and

Crab Addison; Ignite Restaurant Group and Crab Addison

objected to the claims; and the matter is now set for trial in the

bankruptcy court on December 3, 4 and 5, 2018. Accordingly, this

appeal is proceeding only between the Martinez parties and

Landry’s Restaurants.2

2. Events Through Our February 26, 2015 Remand in

Martinez v. Joe’s Crab Shack Holdings (2014)

231 Cal.App.4th 362

a. Crab Addison’s writ petition

In December 2007, several days after filing a first amended

complaint, Martinez served special interrogatories seeking,

among other items, the identity and contact information for

putative class members, that is, for current or former salaried

employees of Joe’s Crab Shack restaurants in California. Crab

Addison objected on the ground the interrogatories sought

confidential and private information. On April 30, 2008 the trial

court granted Martinez’s motion to compel Crab Addison to

provide the requested names and contact information. On

May 19, 2008 the court clarified its April 30 order and granted

Martinez’s additional motion to compel Crab Addison to identify

and provide contact information for potential employee witnesses.



2

The Chapter 11 liquidation plan filed in 2017 by Ignite

Restaurant Group reflects an agreement to sell the Joe’s Crab

Shack chain and another restaurant chain to Landry’s, Inc.

5

On May 29, 2008 Crab Addison filed a petition for writ of

mandate in this court, challenging the trial court’s discovery

orders. On June 3, 2008 we ordered Martinez to file a response to

the writ petition and stayed enforcement of the trial court’s

April 30, 2008 and May 19, 2008 discovery orders pending further

order of this court. The writ proceeding was actively litigated

through December 30, 2008 when we filed our decision in Joe’s

Crab Shack I, supra, 169 Cal.App.4th 958, denying the writ

petition and upholding the trial court’s orders compelling

disclosure of the relevant employees’ names and contact

information. A petition for rehearing was denied on January 14,

2009; the Supreme Court denied review on March 18, 2009; and

the remittitur, certifying that our decision had become final,

issued on April 13, 2009. A total of 319 days elapsed between

Crab Addison’s filing of its petition and the issuance of our

remittitur.3

Although we stayed enforcement of the order compelling

discovery of putative class members’ names and contact

information while Crab Addison’s writ petition was pending, the

parties continued to litigate other aspects of the case in the trial

court, including engaging in written and deposition discovery.

b. Removal to federal court

On March 25, 2009, 19 days before the issuance of our

remittitur in the writ proceeding, Crab Addison and Joe’s Crab

Shack Holdings filed notice that they had removed Martinez’s



3

The Martinez parties claim the relevant period is 331 days,

measuring it from the date the trial court granted the motion to

compel further discovery responses rather than the date on which

Crab Addison filed its petition for writ of mandate in this court.

6

lawsuit to federal court under the Class Action Fairness Act of

2005 (CAFA) (28 U.S.C. § 1332(d)).4

On June 4, 2009 the district

court granted Martinez’s motion to remand, finding that Crab

Addison and Joe’s Crab Shack Holdings had failed to carry their

burden of establishing the requisite $5 million amount in

controversy.5

The court’s clerk sent notice of remand, together

with a certified copy of the order of remand, to the state court on

June 8, 2009, 75 days after removal.

On September 30, 2009 the Ninth Circuit issued an order

permitting Crab Addison and Joe’s Crab Shack Holdings to

appeal the district court’s order of remand. On November 24,

2009 the Ninth Circuit affirmed the order of remand. During the

169 days between the clerk’s notice of the order of remand and

the Ninth Circuit’s affirmance of the district court’s order,6

the



4 CAFA expanded the federal courts’ discretion to exercise

diversity jurisdiction over class actions, permitting federal

jurisdiction under specified circumstances when the aggregate

amount of the plaintiffs’ claims exceeds $5 million (28 U.S.C.

§ 1332(d)(2), (d)(6)) and at least one plaintiff is diverse from at

least one defendant (28 U.S.C. § 1332(d)(2)(A)).

5

The district court rejected the argument that the removal

by Crab Addison and Joe’s Crab Shack Holdings under CAFA

was untimely.

6 A total of 114 days elapsed between the date the district

court clerk sent the notice of remand, which returned jurisdiction

to the superior court, and the date the Ninth Circuit accepted

Crab Addison and Joe’s Crab Shack Holdings’ appeal of the

district court’s remand order. The appeal was pending for an

additional 55 days.

7

parties continued to engage in discovery activities in the trial

court.

c. Appeal of the denial of class certification

In June 2011 the Martinez parties moved for certification of

a class consisting of “[a]ll persons employed by Defendants in

California as a salaried restaurant employee in a Joe’s Crab

Shack restaurant at any time since September 7, 2003.” In

support of their motion the Martinez parties submitted training

and operation manuals, as well as deposition testimony and

declarations from former and current employees of Joe’s Crab

Shack restaurants, to establish that hiring, training and

operations practices are uniform throughout the chain. (See

Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th

362, 368 (Joe’s Crab Shack II).) The employee declarations were

largely from individuals employed as assistant managers. They

all stated they routinely worked more than 55 hours per week

and spent the majority of time performing tasks ordinarily

performed by hourly employees (for example, filling in when

needed as cooks, servers, bussers or kitchen staff), for which they

received no overtime compensation. (Id. at p. 369.)

The trial court denied the motion for class certification on

May 23, 2012. Based on Saldana’s, Eriksen’s and RankinStephens’s

concession at their depositions that the amount of

time they spent on particular tasks varied from day to day and

their inability to estimate the number of hours spent on

individual exempt and nonexempt tasks, the court found that

they had failed to establish that their claims were typical of the

class or that they could adequately represent the class. In

addition, although acknowledging the existence of common

questions of law and fact, the court, citing evidence provided by

8

the restaurant entities, concluded there remained significant

individual disputed issues of fact relating to the amount of time

spent by each class member on particular tasks. As a result, the

court ruled common questions did not predominate and a class

action would not be the superior means of resolving the litigation.

(Joe’s Crab Shack II, supra, 231 Cal.App.4th at pp. 371-372.)

The Martinez parties filed a notice of appeal on July 13,

2012. We initially reversed the trial court’s order in a

nonpublished decision filed November 12, 2013. As we noted in

our opinion, Duran v. U.S. Bank National Assn. (2014)

59 Cal.4th 1 (Duran) was then pending before the Supreme

Court. Following our decision, the Supreme Court granted the

restaurant entities’ petition for review and eventually transferred

the matter to us on July 30, 2014 for reconsideration in light of

its decision in Duran.

On November 14, 2014 we filed our revised opinion, once

again reversing the trial court’s order. (Joe’s Crab Shack II,

supra, 231 Cal.App.4th 362.) We held, in light of the principles

established in Sav-On Drug Stores, Inc. v. Superior Court (2004)

34 Cal.4th 319 (Sav-On), Brinker Restaurant Corp. v. Superior

Court (2012) 53 Cal.4th 1004, Duran, supra, 59 Cal.4th 1, and

Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522

(another then-recent Supreme Court decision discussing the

predominance issue in the context of a wage and hour class

action), the trial court had failed to adequately assess the means

by which the Martinez parties’ theory of recovery could be proved

through resolution of common questions of fact and law. In

particular, we explained, “courts in overtime exemption cases

must proceed through analysis of the employer’s realistic

expectations and classification of tasks rather than asking the

9

employee to identify in retrospect whether, at a particular time,

he or she was engaged in an exempt or nonexempt task.” (Joe’s

Crab Shack II, at p. 382.) We also stated, “[W]e understand from

Brinker, Duran and Ayala that classwide relief remains the

preferred method of resolving wage and hour claims, even those

in which the facts appear to present difficult issues of proof. By

refocusing its analysis on the policies and practices of the

employer and the effect those policies and practices have on the

putative class, as well as narrowing the class if appropriate, the

trial court may in fact find class analysis a more efficient and

effective means of resolving plaintiffs’ overtime claim.” (Id. at

p. 384.)

A petition for rehearing was denied on December 3, 2014.

The Supreme Court denied review on February 11, 2015. Our

remittitur issued on February 26, 2015, returning jurisdiction

over the case to the trial court. A total of 958 days (two years,

228 days) elapsed between the filing of the Martinez parties’

notice of appeal and issuance of our remittitur.

3. Discovery Issues Following Remand

On January 16, 2015, prior to the Supreme Court’s denial

of review and our issuance of the remittitur in the class

certification appeal, the Martinez parties propounded additional

discovery directed to class action issues, including an e-discovery

request seeking production of all electronic mail communications

between September 7, 2003 and the date of the request related to

the “realistic expectations of the salaried positions in a Joe’s Crab

Shack Restaurant,” the “expectations” for those positions and the

discretion or independent judgment enjoyed by employees in

those positions. When nothing was produced, the Martinez

parties moved on July 7, 2015 to compel further responses from

10

Crab Addison and Ignite Restaurant Group.7

On September 28,

2015 the court granted the motion to compel in part, ordering

production of electronically stored information, but limiting the

search terms to be used and imposing other conditions relating to

issues of technological feasibility. The court directed the parties

to meet and confer regarding a protective order, to discuss

potential sampling techniques and to develop a written

inspection protocol.8

Actual production of electronically stored information did

not occur until April 26, 2016 at which point Crab Addison and

Ignite Restaurant Group provided more than 83,000 pages of

responsive material, primarily emails. During this period the

court set periodic status conferences, approximately every two

weeks, for an update on compliance with its discovery order. At a

May 10, 2016 hearing counsel for Crab Addison and Ignite

Restaurant Group represented that all remaining documents



7

In their reply brief the Martinez parties explain, albeit

without any citation to the appellate record, that Landry’s

Restaurants had responded to the e-discovery demand by stating

it retained no records, including emails, when it sold the

restaurant chain to Joe’s Crab Shack Holdings in November

2006. Accordingly, the motion to compel was directed only to

Crab Addison and Ignite Restaurant Group, not Landry’s

Restaurants.

8

Although the court’s tentative ruling stated it intended to

schedule a hearing on a class certification motion when it heard

the motion to compel, no such hearing date was set on

September 28. The court did schedule a further hearing to

monitor continuing e-discovery issues.

11

would be produced within the next few weeks. Additional

materials were provided through the end of June 2016.

4. Martinez’s Motion To Set Trial and the Motion To

Dismiss

On June 30 or July 1, 20169

the Martinez parties moved to

sever Martinez’s individual claims (as discussed, the court had

previously ruled he could not serve as a class representative) and

to set them for trial within the next 45 to 60 days. Alternatively,

the Martinez parties asked the court to confirm that the five-year

period to bring their class action to trial, with appropriate tolling,

did not expire until July 23, 2017 and to set a trial date to take

place after the court ruled on class certification but before

July 23, 2017.

On June 30, 2016 Crab Addison and Ignite Restaurant

Group moved to dismiss the action with prejudice pursuant to

sections 583.310 and 583.360 on the ground the Martinez parties

had failed to bring their lawsuit to trial within five years, as

extended. On July 7, 2016 Landry’s Restaurants filed a notice of

joinder in the motion to dismiss.

Both sides’ motions were fully briefed. On August 3, 2016,

after hearing argument, the court granted the motion to dismiss

the case, agreeing with Crab Addison, Ignite Restaurant Group

and Landry’s Restaurants’ position that the five-year period had

been extended only a total of 1,033 days (75 days during the



9

The Los Angeles Superior Court’s case summary indicates

the Martinez parties’ motion was filed on June 30, 2016. The

Martinez parties’ opening brief gives the filing date as July 1,

2016; the table of contents in their Appellants’ Appendix gives

the date as June 29, 2016. The copy of the document included in

the Appellants’ Appendix has no file stamp.

12

period of removal to federal district court and 958 days during

the class certification appeal), and that the time to bring the

action to trial had expired on August 26, 2015. The court ordered

the Martinez parties’ motion to set trial off-calendar as moot.

Judgment was entered on August 24, 2016.

CONTENTIONS

The parties agree the jurisdiction of the trial court was

suspended for a total of 1,033 days while the action was pending

in the federal district court following removal (75 days) and

during the Martinez parties’ appeal of the denial of their motion

for class certification (958 days). The Martinez parties concede

there are no other mandatory exclusions from the five-year period

to bring an action to trial but contend it was impossible,

impracticable or futile to bring the action to trial during the writ

proceedings reviewing the order to produce contact information

for putative class members (319 days), the time between the

district court’s order remanding the case following removal and

the Ninth Circuit’s affirmance of that order (169 days), and the

nine-month period between the order to produce electronically

stored information and full production of that material.10



10

During its 10-year-plus history, this lawsuit has been

assigned to several different departments of the Los Angeles

Superior Court; and a number of judges have had responsibility

for the case and decided substantive motions. Most recently,

Judge Michael J. Raphael oversaw discovery proceedings

following our reversal of the class certification order. While

Judge Raphael was sitting by assignment with the court of

appeal, however, the motion to dismiss was heard by

Judge Allan J. Goodman. We reject as not legally cognizable the

Martinez parties’ complaint that Judge Goodman, who had the

benefit of extensive briefing and oral argument before granting

13

DISCUSSION

1. Sections 583.310 and 583.340 and the Standard of

Review

Section 583.310 provides, “An action shall be brought to

trial within five years after the action is commenced against the

defendant.” In computing the five-year period within which an

action must be brought to trial, however, “there shall be excluded

the time during which any of the following conditions existed: [¶]

(a) The jurisdiction of the court to try the action was suspended.

[¶] (b) Prosecution or trial of the action was stayed or enjoined.[11]

[¶] (c) Bringing the action to trial, for any other reason, was

impossible, impracticable, or futile.” (§ 583.340.)12

Dismissal is



the motion, was not sufficiently familiar with the facts of the case

to exercise informed discretion in determining whether it was

impossible, impracticable or futile to bring the action to trial

within the period mandated by sections 583.310 and 583.340

11 Section 583.340, subdivision (b), applies only when a stay

encompasses all proceedings in the action and does not include

partial stays. (Bruns v. E-Commerce Exchange, Inc. (2011)

51 Cal.4th 717, 722; see Gaines v. Fidelity National Title Ins. Co.

(2016) 62 Cal.4th 1081, 1094.)

12

In addition to the tolling provisions of section 583.340,

section 583.350 provides, “If the time within which an action

must be brought to trial pursuant to this article is tolled or

otherwise extended pursuant to statute with the result that at

the end of the period of tolling or extension less than six months

remains within which the action must be brought to trial, the

action shall not be dismissed pursuant to this article if the action

is brought to trial within six months after the end of the period of

tolling or extension.”

14

mandatory if the requirements of section 583.310 are not met and

an exception provided by statute does not apply. (§ 583.360,

subd. (b); Gaines v. Fidelity National Title Ins. Co. (2016)

62 Cal.4th 1081, 1090 (Gaines); see McDonough Power

Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 530.)

“Under 583.340(c), the trial court must determine what is

impossible, impracticable, or futile ‘in light of all the

circumstances in the individual case, including the acts and

conduct of the parties and the nature of the proceedings

themselves. [Citations.] The critical factor in applying these

exceptions to a given factual situation is whether the plaintiff

exercised reasonable diligence in prosecuting his or her case.’

[Citations.] A plaintiff’s reasonable diligence alone does not

preclude involuntary dismissal; it is simply one factor for

assessing the existing exceptions of impossibility,

impracticability, or futility. . . . Determining whether the

subdivision (c) exception applies requires a fact-sensitive inquiry

and depends ‘on the obstacles faced by the plaintiff in prosecuting

the action and the plaintiff’s exercise of reasonable diligence in

overcoming those obstacles.’ [Citation.] ‘“[I]mpracticability and

futility” involve a determination of “‘excessive and unreasonable

difficulty or expense,’” in light of all the circumstances of a



Here, the additional 1,033 days during which the trial court

was without jurisdiction extended the five-year period from

September 7, 2012 to July 7, 2015. Because the period of tolling

resulting from the appeal in Joe’s Crab Shack II, supra,

231 Cal.App.4th 362 ended on February 26, 2015, less than

six months before July 7, 2015, the trial court ruled pursuant

section 583.350 that the Martinez parties had six months from

February 26, 2015—that is, until August 26, 2015—to bring the

action to trial.

15

particular case.’” (Bruns v. E-Commerce Exchange, Inc. (2011)

51 Cal.4th 717, 730-731 (Bruns); see also Howard v. Thrifty Drug

& Discount Stores (1995) 10 Cal.4th 424, 438.)

The plaintiff bears the burden of proving the circumstances

justifying application of section 583.340, subdivision (c)’s

exception for impossibility, impracticability or futility. (Bruns,

supra, 51 Cal.4th at p. 731.) “[A] condition of impossibility,

impracticability, or futility need not take the plaintiff beyond the

five-year deadline to be excluded; it will be excluded even if the

plaintiff has a reasonable time remaining after the period to

bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.)

But the plaintiff must establish a causal connection between the

claimed circumstances of impracticability and the plaintiff’s

failure to move the case to trial. (Ibid.; see DeSantiago v. D & G

Plumbing, Inc. (2007) 155 Cal.App.4th 365, 372; Tamburina v.

Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328.)

We review for an abuse of discretion the trial court’s

determination not to exclude periods during which plaintiffs

contend it was impossible, impracticable or futile to bring the

action to trial within the meaning of section 583.340,

subdivision (c). (Gaines, supra, 62 Cal.4th at p. 1100 & fn. 8

[the abuse of discretion standard “has long been applied in this

context”]; Bruns, supra, 51 Cal.4th at p. 731 [“[t]he trial court has

discretion to determine whether that exception applies, and its

decision will be upheld unless the plaintiff has proved that the

trial court abused its discretion”].)

16

2. The Appeal of the District Court’s Remand Order Did

Not Make It Impracticable or Futile To Bring the Case to

Trial Within the Statutory Period

The trial court lost jurisdiction on March 25, 2009 when

Crab Addison and Joe’s Crab Shack Holdings filed notice the case

had been removed to federal court. When the clerk of the district

court sent notice of remand on June 8, 2009, 75 days later, the

trial court once again had jurisdiction over the action: “The

appeal of a remand order does not deprive the state court of

jurisdiction unless a stay is obtained from the federal court.

[Citations.] ‘[T]he pendency of the federal appeal [does] not, in

and of itself, serve to oust the state court of jurisdiction to

proceed.’ [Citation.] Although a removal petition deprives the

state court of jurisdiction as soon as it is filed and served upon

the state court, jurisdiction returns to the state court when a

remand order is filed and served on the state court, unless that

order is stayed.” (People v. Bhakta (2006) 135 Cal.App.4th 631,

636.)

Although jurisdiction was returned to the superior court on

June 8, 2009, at the hearing on the motion to dismiss the

Martinez parties admitted they did nothing to enforce the order

compelling disclosure of putative class members’ contact

information, which they argue was essential to advance their

case toward trial, until after the Ninth Circuit affirmed the

remand order on November 24, 2009. Nor did they seek a stay of

state court proceedings while that appeal was pending from

either the federal court of appeals or the superior court. The

Martinez parties note that a CAFA appeal (if permitted)13



13

With limited exceptions, an order remanding a case to state

court following removal is not reviewable on appeal. In adopting

17

proceeds on an expedited basis (see 28 U.S.C. § 1453(c)(2) & (3))

and, in light of the appeal, the question of federal or state

jurisdiction remained open. Yet they provide no explanation why

any state court discovery obtained while the appeal was pending

would not have been available for use in federal court if the

remand order had been reversed and, therefore, why it was

impracticable for them to continue to pursue discovery during

that period.

In light of the Martinez parties’ failure to exercise

reasonable diligence in prosecuting their case between June 8

and November 24, 2009, it was not an abuse of discretion for the

trial court to include that time within its calculation of the fiveyear

mandatory period to bring the action to trial. (See Bruns,

supra, 51 Cal.4th at p. 731 [“[t]he reasonable diligence standard

is an appropriate guideline for evaluating whether it was

impossible, impracticable, or futile for the plaintiff to comply with

[the statutory five-year constraint] due to causes beyond his or

her control”; internal quotation marks omitted]; Moran v.

Superior Court (1983) 35 Cal.3d 229, 228 [plaintiff’s reasonable

diligence is “critical factor” in evaluating impracticability of

proceeding to trial]; see also Lauriton v. Carnation Co. (1989)

215 Cal.App.3d 161, 165 [“[s]ince appellant did not use every



CAFA and permitting removal of certain types of class action

lawsuits, Congress provided, “a court of appeals may accept an

appeal from an order of a district court granting or denying a

motion to remand a class action to the State court from which it

was removed if application is made to the court of appeals not

more than 10 days after entry of the order.” (28 U.S.C.

§ 1453(c)(1).)

18

reasonable effort to bring the action to trial, he did not exercise

reasonable diligence in prosecuting this case”].)

3. Any Delay in Fully Complying with the Electronic

Discovery Order Did Not Make It Impracticable or Futile

To Bring the Case to Trial Within the Statutory Period

“Generally, delays encountered in discovery are part of the

‘normal delays involved in prosecuting lawsuits’ and do not

excuse failure to bring a case to trial within the five-year limit.”

(Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000,

1016; see Bruns, supra, 51 Cal.4th at p. 731 [“‘[t]ime consumed by

the delay caused by ordinary incidents of proceedings, like

disposition of demurrer, amendment of pleadings, and the normal

time of waiting for a place on the court’s calendar are not within

the contemplation of these exceptions [for periods during which it

was impossible, impracticable or futile to bring the action to

trial]’”].) Notwithstanding this general rule, the Martinez parties

contend Crab Addison and Joe’s Crab Shack Holdings’ delay in

fully responding to their demand for discovery of emails relating

to the “realistic expectations” for, and degree of independence and

discretion enjoyed by, salaried employees at Joe’s Crab Shack

restaurants made it impracticable for them to move for class

certification and bring their action to trial for the nine months

between September 28, 2015, when the court granted in part

their motion to compel, and the end of June 2016 when

production of the electronically stored information was

completed. It was not an abuse of discretion for the trial court to

reject that argument based on counsel’s lack of reasonable

diligence.14





14 Judge Goodman observed that there had not been vigorous

law and motion practice by plaintiffs’ counsel insisting on

19

As discussed, the electronic discovery at issue was not

propounded until January 2015, more than seven years after the

lawsuit was filed. During that time substantial class discovery

had occurred and two motions for class certification were

litigated. Yet the Martinez parties’ suggest their delay in

propounding this additional class discovery was excusable

because it was based on guidance provided by our November 14,

2014 decision in Joe’s Crab Shack II, supra, 231 Cal.App.4th 362.

This argument is misplaced.

At the heart of the Martinez parties’ claims of

misclassification and unpaid wages is Industrial Welfare

Commission (ICW) wage order No. 5-2001, which governs the

“Public Housekeeping Industry,” a category that includes

restaurants (Cal. Code Regs., tit. 8, § 11050, subd. (2)(P)(1)). This

wage order requires employers to provide overtime pay to

employees working more than eight hours in one day or 40 hours

in one week (id., subd. 3(A)) but exempts from this requirement,

among others, persons employed in managerial or executive

capacities (id., subd. 1(B)(1)). The wage order defines in general

terms the nature of the duties and responsibilities of employees

who fall with this category (id., subd. 1(B)(1)(a)-(d)) and provides

that the exemption applies to an employee who is “primarily”

engaged in those activities (id., subd. 1(B)(1)(e)), that is, “more

than one-half of the employee’s work time” is devoted to them

(id., subd. 2(O)). In determining whether the exemption applies,



immediate production of the electronic discovery during the

four months he had been responsible for the case: “You weren’t

in here demanding. There were discussions. There were

agreements. But there was no metaphorically pounding the

table, saying, ‘Where’s the beef?’”

20

wage order No. 5 states, “The work actually performed by the

employee during the course of the workweek must, first and

foremost, be examined and the amount of time the employee

spends on such work, together with the employer’s realistic

expectations and the realistic requirements of the job shall be

considered in determining whether the employee satisfies this

requirement.” (Id., subd. 1(B)(1)(e), italics added.)

The significance of the employer’s realistic expectations and

the realistic requirements of the job in evaluating whether an

employee was properly classified as exempt from overtime pay

requirements, as set forth in various ICW wage orders, including

wage order No. 5, was recognized nearly 20 years ago by the

Supreme Court in Ramirez v. Yosemite Water Co. (1999)

20 Cal.4th 785, 802 (in evaluating applicability of wage order

exemption for outside salespersons, trial court should inquire into

“the realistic requirements of the job”). And the need to focus on

those realistic expectations and requirements to determine

whether common issues predominate and a class action provides

an effective means of resolving the plaintiffs’ overtime claims—

our holding in Joe’s Crab Shack II, supra, 231 Cal.App.4th 362—

was central to the Supreme Court’s landmark class action ruling

in Sav-On, supra, 34 Cal.4th at pages 336-337: “Any dispute over

‘how the employee actually spends his or her time’ [citation], of

course, has the potential to generate individual issues. But

considerations such as ‘the employer’s realistic expectations’

[citation] and ‘the actual requirements of the job’ [citation] are

likely to prove susceptible of common proof.” (See Joe’s Crab

Shack II, at p. 382 [quoting this language from Sav-On]; see also

Duran, supra, 59 Cal.4th at p. 54 (conc. opn. of Liu, J.) [“Sav-On

made clear that variation in how employees spend their time does

21

not, by itself, preclude a finding that an employer’s realistic

expectations are susceptible to common proof”].)

Thus, well before our decision in Joe’s Crab Shack II,

counsel representing the Martinez parties should have realized

the significance for class certification of the information

requested by their January 2015 demand for electronically stored

information.15

To the extent they had not previously conducted

discovery regarding Landry’s Restaurants’ and Crab Addison’s

realistic expectations and realistic job requirements for salaried

employees at Joe’s Crab Shack restaurants, the Martinez parties

alone were responsible for that omission.

Indeed, nothing in our opinion indicated additional

discovery was required or supplemental information needed

before the trial court reevaluated the Martinez parties’ class

certification motion. To the contrary, based on the record before

us, we held the class was adequately represented by Saldana,

Eriksen and Rankin-Stephens and their claims were typical of

the class, eliminating those issues from further consideration.

(Joe’s Crab Shack II, supra, 231 Cal.App.4th at pp. 375-377.)

We then held the trial court had failed to adequately assess the

means by which the Martinez parties’ theory of recovery could be

proved through common questions of fact and law, relying in

substantial part on the Supreme Court’s analysis in Sav-On



15 The Electronic Discovery Act (Stats. 2009, ch. 5, § 1)

establishing procedures to obtain discovery of electronically

stored information was adopted by the Legislature as urgency

legislation in 2009 and was effective June 29, 2009, two months

after issuance of our remittitur in Joe’s Crab Shack I and more

than eight months before the trial court decided the first motion

for class certification in this litigation.

22

(Joe’s Crab Shack II, at pp. 382-383); and we directed the trial

court to reconsider whether class certification provided a superior

method of resolving their claims “[b]y refocusing its analysis on

the policies and practices of the employer and the effect those

policies and practices have on the putative class” (id. at p. 384)—

information that already appeared in the record. (Compare Lee v.

Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1339 [reversing

denial of class certification and directing court, after ordering

additional discovery, “to permit the parties to file supplemental

papers regarding the propriety of class certification and to

conduct a new class certification hearing”].)

The Martinez parties’ election to conduct additional class

discovery, rather than immediately renew their class certification

motion, was a tactical decision. The time devoted to this

discovery effort was properly included by the trial court in

calculating section 583.310’s five-year deadline. (See Bruns,

supra, 51 Cal.4th at p. 731 [impossibility, impracticability or

futility must be due to causes beyond plaintiff’s control].)

4. We Need Not Determine Whether This Court’s Writ

Review of the Order Compelling Disclosure of Putative

Class Members’ Contact Information Made It

Impracticable or Futile To Bring the Case to Trial

Within the Statutory Period

In Lee v. Dynamex, Inc., supra, 166 Cal.App.4th 1325, we

held the trial court’s denial of the named plaintiff’s motion to

compel disclosure of potential class members’ identity and contact

information directly conflicted with the Supreme Court’s decision

in Pioneer Electronics (USA), Inc. v. Superior Court (2007)

40 Cal.4th 360, as well as two then-recent decisions from our

23

court,16 and the erroneous discovery ruling improperly interfered

with the plaintiff’s ability to establish the necessary elements for

class certification. (Lee, at pp. 1329, 1338.) Because the plaintiff

lacked the means to develop evidence to support the motion for

class certification, we declined to review that order and instead

remanded the matter for additional discovery and a new class

certification hearing. (Id. at pp. 1338-1339.)

Relying on our holding that putative class member contact

information is essential to a plaintiff’s motion for class

certification, as well as the principle that a class action is not

ready to proceed to trial until the court has ruled on class

certification (see, e.g., Fireside Bank v. Superior Court (2007)

40 Cal.4th 1069, 1083 [“in the absence of a defense waiver [trial

courts] should not resolve the merits in a putative class action

case before class certification and notice issues absent a

compelling justification for doing so”]), the Martinez parties

argue it was impossible to bring their action to trial during the

11 months that Crab Addison’s writ petition challenging the trial

court’s order to produce that information was pending in this

court.

In contrast, emphasizing that only production of putative

class members’ identity and contact information was stayed

during the pendency of Joe’s Crab Shack I and that other

discovery took place while the writ petition was being litigated,



16

In addition to Pioneer Electronics (USA), Inc. v. Superior

Court, supra, 40 Cal.4th 360, the trial court’s discovery order

conflicted with our decisions in Puerto v. Superior Court (2008)

158 Cal.App.4th 1242 and Belaire-West Landscape, Inc. v.

Superior Court (2007) 149 Cal.App.4th 554. (See Lee v. Dynamex,

Inc., supra, 166 Cal.App.4th at pp. 1337-1338.)

24

Landry’s Restaurants argues the writ proceeding was one of the

ordinary incidents of litigation and it was not an abuse of

discretion for the trial court to include this period in determining

the five-year deadline to bring the case to trial.

We need not resolve this issue. As extended by the period

of removal to federal district court (75 days) and the appeal in

Joe’s Crab Shack II (958 days), but for the six-month provision in

section 583.35017 the time to bring the action to trial expired on

July 7, 2015. Adding the time Joe’s Crab Shack I was pending,

however one calculates that time,18 would still result in the fiveyear

deadline falling at least several weeks prior to the filing of

both the motion to dismiss and the Martinez parties’ motion to

sever and set for trial Martinez’s individual claims. Accordingly,



17

See footnote 12, above.

18

As discussed, the Martinez parties contend 331 days should

be excluded from the five-year deadline to bring the case to trial,

measured from the trial court’s order granting the motion to

compel production on May 19, 2008 through issuance of our

remittitur in Joe’s Crab Shack I, supra, 169 Cal.App.4th 958 on

April 13, 2009. However, because the notice of removal to federal

court was filed on March 25, 2009, the final 19 days of this period

is already excluded in evaluating the time to bring the case to

trial. In addition, even if we were to reach the issue and agree

with the Martinez parties’ argument, it is unclear whether the

affected period properly begins on May 19, 2008, when the trial

court issued its order compelling discovery, as the Martinez

parties’ contend; May 29, 2008, when Crab Addison filed its

petition for writ of mandate; or June 3, 2008, when we ordered

Martinez to file a response to the writ petition and stayed

enforcement of the trial court’s orders to produce putative class

members’ identity and contact information.

25

any error in refusing to exclude this time from the five-year

period would be harmless.

The judgment is affirmed. Landry’s Restaurants is to recover its costs on appeal.