Sofia Wilton Barriga v. 99 Cents Only Stores, LLC

Plaintiff Sofia Wilton Barriga filed this lawsuit against 99 Cents Only Stores LLC,

(99 Cents) on her own behalf and on behalf of similarly situated current and former

nonexempt employees of 99 Cents hired before October 1, 1999, and who worked the

graveyard shift after January 1, 2012, until the conclusion of her lawsuit, pleading various

Labor Code violations and violation of the unfair competition law. (Bus. & Prof. Code,

§ 17200 et seq.) Plaintiff alleged 99 Cents has a zero-tolerance policy that requires its

stores to lock their doors at closing time, therefore, forcing nonexempt, nonmanagerial

employees, who work the graveyard shift and clock out for their meal break or at the end of

their shift, to wait for as long as 15 minutes for a manager with a key to let them out of the

store. According to plaintiff, 99 Cents does not pay its employees for the time they have to

wait be let out of the store, and its zero-tolerance policy denies employees their full halfhour meal break. In addition, plaintiff alleges 99 Cents does not promptly pay employees

the wages they are owed upon termination or resignation and does not provide employees

with accurate wage statements.

Plaintiff moved the trial court to certify two classes: (1) “Off the Clock Class,”

consisting of employees who were locked in the store and not paid for the time they waited,

and (2) “Meal Period Class,” comprised of employees who were denied full meal breaks

because they were locked in. Thereafter, 99 Cents opposed plaintiff’s motion to certify the

proposed classes, contending there is no community of interests among putative class

3

members, and the lack of common issues among putative class members will render a class

action unmanageable. In support of its opposition, 99 Cents submitted 174 declarations

from current and former nonexempt employees to establish, inter alia, that its closed-door

policy was often observed in the breach, meaning graveyard shift employees could leave

the store immediately without waiting to be let out, and those employees who did have to

wait were let out promptly and paid for the time they waited. Only 53 of the declarants

were members of the proposed classes. All 174 declarations included an identical or nearly

identical paragraph stating the declarants knew their declarations could be used by 99 Cents

to defend itself against a class action lawsuit about its wage policies and practices, and an

identical or nearly identical paragraph purporting to state the declarants had not been

coerced into signing their declaration and understood what they were signing.

Plaintiff deposed 12 of the employee declarants who were members of the proposed

classes. Most of the deponents clearly testified they understood what they were signing,

and they did so freely and without coercion or promise of promotion or a pay raise.

However, some of the deponents testified they had no idea what the lawsuit was about or

even why they had been called upon to testify. And, most of the deponents testified they

had been summoned, during working hours, to an office, by a representative from human

resources, and presented with a declaration for their signature.

Plaintiff moved to strike all 174 declarations on the grounds the process by which

they had been obtained was improper, and because they were substantively inconsistent

with the subsequent deposition testimony of 12 of the declarants. Concluding it lacked the

4

statutory authority to strike the declarations, the trial court denied plaintiff’s motion to

strike. In the alternative, the court concluded there was no coercion to justify striking the

declarations from putative class members, and it lacked the authority to review for coercion

let alone strike any of the declarations from nonputative class members. And, based on all

174 declarations, the court concluded plaintiff had not demonstrated a community of

interests or a commonality of issues among putative class members. Therefore, the court

denied plaintiff’s class certification motion. Plaintiff appeals those orders.

Adopting the standards articulated in Gulf Oil Co. v. Bernard (1981) 452 U.S. 89

(Gulf Oil), California courts have recognized the trial court has both the duty and the

authority to exercise control over precertification communications between the parties and

putative class members to ensure fairness in class actions.1 Moreover, the lower federal

courts have consistently held that an ongoing business relationship between the class

opponent and putative class members—especially a current employer-employee

relationship—is rife for abuse and coercion. Therefore, those courts have cautioned that

statements obtained by the class opponent from its employees, to oppose a class

certification motion, must be carefully scrutinized for actual or threatened abuse. And, if

the trial court concludes the statements were obtained under coercive or potentially abusive

circumstances, it has discretion to either strike those statements entirely or discount the

evidentiary weight to be given to them. In addition, some lower federal courts have



1

See Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1067

(Lofton); Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572,

579 (Howard Gunty); Parris v. Superior Court (2003) 109 Cal.App.4th 285, 296 (Parris).

5

concluded the trial court’s duty and authority to protect the integrity and fairness of actions

extends to communications with a defendant’s employees who are not currently or

potentially members of the class.

The record demonstrates the trial court in this case was unaware of the need to

scrutinize 99 Cents’ declarations carefully and was either unaware of or misunderstood the

scope of its discretion to either strike or discount the weight to be given the

174 declarations, including the declarations of employees who were not members of the

putative classes, if it concluded they were obtained under coercive or abusive

circumstances. Therefore, we reverse the orders denying plaintiff’s motion to strike

99 Cents’ declarations and class certification motion, and we remand for the trial court to

reconsider them.

2

II.

FACTS AND PROCEDURAL HISTORY

A. Plaintiff’s Complaint and Class Certification Motion.

In her complaint for damages, plaintiff alleged she was employed by 99 Cents as a

nonexempt worker from approximately 1997 until her termination on or about April 3,



2

We express no opinion on whether the declarations were, in fact, obtained under

coercive or abusive circumstances and express no opinion whether the trial court should or

should not exercise its discretion to strike or discount the weight to be given the

declarations. In addition, we express no opinion whether the court should permit additional

discovery to determine whether the declarations were freely and voluntarily given. Finally,

because we need not address the merits of the order denying plaintiff’s class certification

motion, we express no opinion as to the merits of the motion.

6

2013. According to plaintiff, 99 Cents’ “policies and practices unlawfully require off-theclock work. Defendants[3] have a policy of locking their retail stores during the graveyard

shift while the stores are being stocked. As part of their policy and practice, Defendants

also require employees who are leaving the store for a meal break or at the end of their

shifts to clock out and then wait up to 15 minutes for a manager to inspect the premises

and/or unlock the doors. Defendants do not compensate employees for the time they spend

while waiting to be released from the premises, during which time they are subject to

Defendants’ control.”

Plaintiff alleged 99 Cents acted in furtherance of policies and practices that denied

her and the members of the proposed classes of: (1) compensation for all hours worked, in

violation of Labor Code section 1194 and the Industrial Welfare Commission’s wage order

No. 7;

4

(2) half-hour off-duty meal breaks, in violation of Labor Code section 226.7 and

wage order No. 7; (3) payment for wages earned in a timely manner upon termination or

resignation, in violation of Labor Code sections 201 and 202; and (4) accurate wage

statements, in violation of Labor Code section 226, subdivision (a). In addition, plaintiff

alleged 99 Cents engaged in unlawful, deceptive, and/or unfair business practices in

violation of Business and Professions Code section 17200 et seq.



3

The only named defendant is 99 Cents.

4

Wage orders adopted by the Industrial Welfare Commission govern wages, hours,

and working conditions and “have the dignity and force of statutory law” unless superseded

by statute. (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 725.)

7

Plaintiff sought to bring her lawsuit on behalf of all similarly situated nonexempt

employees of 99 Cents’ California stores who worked the graveyard shift between the four

years before she filed the lawsuit and the conclusion of the lawsuit. Plaintiff alleged (1)

there was a well-defined community of interests in the lawsuit and the proposed class was

easily ascertainable; (2) the class was estimated to be in excess of 1,000 individuals, so

joinder of all affected class members was impractical; (3) the lawsuit involved common

issues of law and fact regarding 99 Cents’ “systematic course of illegal practices and

policies throughout the State of California”; (4) plaintiff’s individual claims were typical to

the claims of class members; (5) plaintiff’s counsel would provide fair and adequate

representation to the classes; and (6) a class action was superior to individual lawsuits by

members of the classes. Therefore, plaintiff prayed for an order certifying the lawsuit as a

class action pursuant to Code of Civil Procedure section 382.

In her motion for class certification, plaintiff requested the trial court certify two optout classes: (1) “Off the Clock Class,” which consisted of “All non-exempt, nonmanagerial employees of 99 Cents Only Stores retail store locations in the [S]tate of

California who were hired any time before October 1, 1999, and who worked one or more

shifts in a non-key holder position from January 1, 2012 through the date of final

disposition of this action in which they clocked out to end their shift during overnight hours

when the store was not open to the public”; and (2) “Meal Period Class,” which consisted

of “All non-exempt, non-managerial employees of 99 Cents Only Stores retail store

locations in the [S]tate of California who were hired any time before October 1, 1999, and

8

who worked one or more shifts in a non-key holder position from January 1, 2012 through

the date of final disposition of this action in which they clocked out for a meal period

during overnight hours when the store was not open to the public.”5

According to plaintiff, 99 Cents’ “non-compromising” and “zero-tolerance” policy

that the doors to all stores must be locked after closing resulted in all nonexempt, non-key

holding employees working graveyard shifts and clocking out at the end of their shift, or

clocking out for their meal break and wishing to leave the store, having to wait for as long

as 15 minutes for a key-holding manager to let them out. Plaintiff argued 99 Cents does not

pay those employees for the time they had to wait, and the zero-tolerance policy resulted in

the denial of full half-hour meal breaks, in violation of California labor law. Plaintiff

submitted deposition testimony and declarations from various current and former

employees to support the allegations in the complaint and to establish the prerequisites for

class certification.

B. Opposition to the Class Certification Motion.

99 Cents opposed plaintiff’s class certification motion. It contended its policies and

practices were fully in compliance with California labor law and did not deny employees

full compensation for wages earned or legally mandated meal breaks. It also argued the

proposed classes should not be certified because individual issues predominate for

members of both classes and manageability issues preclude certification. To refute the core



5 Essentially, plaintiff sought certification of “Lock-In” classes. (See Utne v. Home

Depot U.S.A., Inc. (N.D.Cal., Jul. 11, 2019, No. 16-cv-01854-RS) 2019 U.S. Dist. Lexis

115648.)

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claim made in the complaint—that nonexempt, non-key holding employees were regularly

locked in the stores and had to wait for a manager to let them out—99 Cents submitted

declarations from 174 of its California employees, in which the declarants stated they were

able to leave the store “immediately” or within one or two minutes upon clocking out of

graveyard shifts and were not denied sufficient meal breaks. According to 99 Cents, only

53 of the declarants were members of the proposed classes.

All 174 declarations included an identical or nearly identical paragraph indicating

the declarant understood his or her declaration could be used by 99 Cents to defend itself

against a class action lawsuit “regarding the way the Company keeps track of the hours

worked by employees whose shifts end when the store is closed for business, their meal

breaks, and how it pays these employees’ wages.” One-hundred sixty of the declarations

included an identical concluding paragraph which read: “I am signing this declaration

voluntarily and understand that I am not required to do so. I understand that the Company

representative who has helped me prepare this declaration is working on behalf [of] the

Company and not me personally. I further understand that my decision to sign this

declaration (or my decision not to do so) will have no effect whatsoever on my employment

as a 99er, and the person presenting me with this declaration has made this clear.”6



6

Seven of the declarations had a slight variation on the last sentence: “In addition,

I also understand that my decision to sign this declaration (or my decision not to do so) will

not have any effect on my work as an individual of 99, and the person who presents this

declaration has let me know this.” In addition, seven of the declarations were in Spanish.

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C. Plaintiff’s Depositions of 12 of the 174 Declarants.

As noted ante, only 53 of the declarations submitted by 99 Cents to oppose class

certification were obtained from members of the putative classes. Plaintiff deposed 12 of

them. During those depositions, plaintiff asked the declarants whether they truly

understood the nature of the lawsuit and tried to probe whether the declarations were freely

and voluntarily signed.

During the deposition of R.B., plaintiff’s counsel stated, “We are only here to

uncover the information that you know regarding this case.” R.B. responded, “You said

right now that I have knowledge about this case? I know nothing.” When asked whether

he had prepared for the deposition, R.B. testified, “I didn’t even know what I was coming

for.” And when asked if he had reviewed any documents in preparation for his testimony,

he said, “No. As I’m telling you I don’t understand why I’m here.” R.B. further testified,

“three people arrived to my job and that’s the paper I signed,” referring to his declaration.

When asked if he recognized his declaration, he replied, “Yes, but it’s no use for you to

give me papers because I don’t understand anything.” R.B. also testified he did not write

the declaration himself and, when asked if someone prepared it for him, he testified three

people spoke to him at his work, but only one of them spoke Spanish. The three people

asked him questions for half an hour. He was not given a chance to review the declaration

before he signed it. He said, “they asked me [to sign] so I didn’t review anything, I just

signed because they told me don’t review anything.” R.B. repeated his testimony that he

knew nothing, and when asked why he decided to provide a declaration, he said, “Because

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they asked me, they called me to talk. Because I wouldn’t say anything on my own.”

When asked if he had been given a Spanish version of the declaration to review, defense

counsel objected the answer would require disclosure of privileged communications.

R.B. added, “they told me what it means in Spanish.” And, over the same objection, he

testified the three people did not tell him who they represented.

J.D. testified people from human resources came to her workplace and called her

into an office. They told her “somebody is suing,” and gave her a declaration to sign. The

company representatives spoke to her for 10 minutes. She read the declaration before she

signed it. She testified, “He gave me the paper and I signed.” When asked why she

decided to provide a declaration, J.D. testified, “Because I am old, I [have been] working

too long in 99 Cent Store, and I said whatever I saw. That’s why, the truth.” And when

plaintiff’s counsel asked if J.D. had been told she could have an attorney review the

declaration before she signed it, defense counsel objected the question asked for disclosure

of privileged communications and instructed J.D. not to answer.

M.B. testified that a woman from human resources came to her store and asked her

questions. The woman translated a declaration for her, but she was not provided a Spanish

version. M.B. had the opportunity to read the declaration before she signed it. When asked

why she signed the declaration, M.B testified, “I replied only to what she asked me about

my experience.” She did not feel pressured to sign or believe there would be consequences

if she did not sign the declaration, and she was not promised anything in exchange for her

signature.

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L.K. testified a woman from human resources came to her store and spoke to her in

an office, after which the woman printed out a declaration to sign. L.K. signed the

declaration after glancing over it, and she did not request that any changes be made to the

declaration. She understood what the declaration said. She did not believe the woman

from human resources was providing legal advice. When asked why she decided to

provide a declaration, she testified, “I just didn’t mind doing it.” She had no motive for

signing the declaration, she felt no pressure to do so, and she received no incentives

afterward.

D.L. testified a representative from human resources contacted him at his store about

signing a declaration. He said he reviewed and read the declaration before signing it, he

understood what it said, and he did not request that any changes be made before he signed

it. The representative spoke to D.L. in a closed office, and he was not asked any questions

about his employment. When plaintiff’s counsel asked if the representative told D.L. what

the lawsuit was about, defense counsel instructed D.L. not to answer the question on the

ground the answer would divulge the content of privileged communications. Defense

counsel interposed the same objection when plaintiff’s counsel asked if the representative

had explained why he should sign the declaration, but D.L. answered, “No.” And, defense

counsel once again objected on the basis of privileged communications when D.L. was

asked if the representative told him why his declaration was needed to win the lawsuit.

D.L. felt no pressure to sign the declaration, he feared no consequences if he did not sign,

and he was neither promised nor received anything in exchange for signing.

13

When asked if O.R. had prepared for his deposition, he testified, “I don’t know what

this lawsuit is about.” He did not recognize his declaration, and when asked if he had seen

it before, he said, “That’s what a guy did for me, I think, about two months ago.” He

testified “a guy” showed up at his work and “gave it to me to sign.” O.R. spoke to this

person for 10 to 15 minutes. A coworker translated the declaration for him. O.R. did not

ask that changes be made to the declaration before he signed it. When asked if he

understood what he was signing, O.R. replied, “At moments I understood what I was

explaining.” When asked if the person who spoke to him had asked any questions about his

employment or whether that person had told him what the lawsuit was about, defense

counsel objected on privilege grounds and instructed O.R. not to answer. Defense counsel

also objected when plaintiff’s counsel asked O.R (1) if he had asked any questions about

his declaration, (2) if the person had told O.R. why he was talking to him, (3) if the person

had explained to O.R. why he should sign the declaration, and (4) if the person had told

O.R. why his declaration was needed to win the lawsuit. O.R. testified he was not offered a

Spanish version of the declaration. He “understood a little” of the translation of the

declaration read to him by his coworker. When asked why he decided to provide the

declaration, he said, “Well, he just asked me questions, and I was answering the questions.”

Finally, he testified he did not feel pressured into signing the declaration, and he was not

promised a raise as an incentive to sign.

J.C. testified she recognized her declaration, but when asked, “What is this

document?,” she answered, “That I’m testifying here voluntarily. But doesn’t this harm me

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in any way?” J.C. did not remember if someone typed the declaration for her. When asked

if she had been interviewed the day she signed the declaration, she answered, “Well,

maybe, because my signature is there.” J.C. further testified a woman interviewed her in an

office at her store, but when plaintiff’s counsel asked if the woman had said who she

worked for, defense counsel objected on the grounds of privilege and instructed J.C. not to

answer. J.C. answered anyway, saying, “I don’t even remember what they told me.” She

said the interview lasted for half an hour or less. Defense counsel again objected on the

grounds of privilege when J.C. was asked if she believed the woman who interviewed her

was an attorney. She could not remember if the declaration was provided to her during the

meeting. When the interview was completed, the woman said, “We’re done,” and J.C.

signed the declaration. When asked if she read the declaration before signing it, J.C.

replied, “That’s why mistakes happen. Because you don’t read.” When asked again, she

said, “Maybe I did. I signed it, so maybe I did.” She gave essentially the same answer

when asked if she understood what the declaration said.

Defense counsel once again objected on privilege grounds and instructed J.C. not to

answer when plaintiff’s counsel asked if she had requested the opportunity to have an

attorney review the declaration before signing it, if she understood why she was asked to

meet with the woman, and if she believed the woman was an attorney and providing her

with legal advice. J.C. thought she was in trouble when she was called to the meeting, her

heart was beating fast, and she was nervous and afraid during the meeting. When asked if

she knew what the lawsuit was about, J.C answered, “Because of the time that they didn’t

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open the door right away, or what other reason?” When plaintiff’s counsel asked J.C. what

she believed the declaration was going to be used for, defense counsel once more objected

on the grounds of privilege and instructed her not to answer. Although J.C. testified she did

not feel pressured into signing, she once again said she was nervous during the meeting.

When asked if she felt there would be consequences if she did not sign the declaration, J.C.

answered, “Well, I thought so, but thank God nothing happened.” Finally, when asked why

she provided her declaration, she said she could not remember.

A man from human resources contacted J.B. at his store about providing a

declaration. He did not know what the meeting was going to be about beforehand. The

meeting lasted between 25 and 30 minutes, after which the man provided J.B. with the

declaration for his signature. J.B. testified he read the declaration and understood what it

said. He did not ask any questions about the declaration during the meeting. He did not

think he was in trouble when he was called to the meeting. When plaintiff’s counsel asked

if the man identified himself as an attorney, if the man told J.B. what the lawsuit was about,

if he told J.B. he was going to ask questions about the lawsuit, and if he explained why J.B.

should sign the declaration and why the declaration was necessary, defense counsel

objected on privilege grounds and instructed J.B. not to answer. J.B. testified he had no

difficulty reading the declaration, he felt no pressure to sign it, and he was not promised

anything in return for signing.

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M.S. testified a woman named Carly approached her at her store and prepared a

declaration for her signature. M.S. read and understood the declaration before signing it.

She could not remember how long the meeting lasted. She did not believe Carly was her

attorney, and she did not ask for the opportunity to have an attorney review the declaration

before she signed it. When plaintiff’s counsel asked if Carly (1) explained that she was an

employee from human resources, (2) stated that she was an attorney, (3) explained what the

lawsuit was about, (4) said why M.S. should sign the declaration, or (5) explained why the

declaration was needed to win the lawsuit, defense counsel objected on privilege grounds

and instructed M.S. not to answer. And when asked why she decided to sign the

declaration, M.S. answered, “The thing is that I have been with the company for 20 years.

She came to the office.” She testified she felt no pressure to sign, she did not believe there

would be consequences if she did not sign the declaration, and she was not promised a raise

or a bonus in exchange for signing.

S.R. testified that a man, who she had never seen before, prepared a declaration for

her signature. When asked if the man told her “who he worked for,” defense counsel

objected on privilege grounds. The meeting lasted about half an hour. She read and

understood the declaration before signing it. Defense counsel again objected when S.R.

was asked if she knew why she had been asked to the meeting, but S.R. answered, “Well, I

guess I thought that it was something that it would have to be like a benefit for us as well.”

She did not believe she was in trouble when she was called into the meeting. And, when

plaintiff’s attorney asked if the man told S.R. what the lawsuit was about, if he said he had

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questions for S.R. about the lawsuit, and if he explained why S.R. should sign the

declaration and why the declaration was needed to defeat the lawsuit, defense counsel

interposed the same privilege objections. S.R. testified she signed the declaration because

she had nothing to hide, she felt no pressure to sign it, she did not believe there would be

consequences if she did not sign, and she was not promised anything in exchange for her

signature. She did not ask any questions about her declaration, and she did not request

changes be made because she “understood it well.”

M.G. testified a woman who claimed to be from human resources contacted her

about preparing a declaration for her. When asked if the woman said what her job title was,

defense counsel objected on privilege grounds. Counsel also objected on privilege grounds

when M.G. was asked if the woman asked questions about M.G.’s employment, if she

identified herself as an attorney, and if she said what the lawsuit was about. In any event,

M.G. testified the woman did not explain what the lawsuit was about. M.G. testified she

knew what the lawsuit was about, but when asked to explain her understanding of the

lawsuit, she said, “Well, I don’t know.” The meeting lasted about 30 minutes. M.G.

testified she read her declaration before signing it and understood what it said, but she also

testified she only sometimes understands what she is reading in English. She did not ask

that changes be made to the declaration before she signed it. When asked why she decided

to provide a declaration, M.G. testified, “She called me.” And when asked if the woman

explained why M.G. should sign the declaration, defense counsel objected on privilege

grounds and instructed her not to answer. Finally, M.G. testified she felt no pressure to

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sign the declaration, she did not believe there would be negative consequences if she did

not sign, and she was not promised anything to induce her to sign.

Finally, S.A. testified a declaration was presented for her signature. She reviewed it

for about 30 minutes before signing it. She understood what it said, and she did not ask that

changes be made. She did not feel pressured into signing the declaration, and she did not

believe she would suffer any consequences if she refused to sign. She was not promised

anything and received no raise or bonus for signing.

D. Plaintiff’s Motion to Strike the Declarations.

Plaintiff moved to strike all 174 declarations submitted in support of 99 Cents’

opposition to the class certification motion, contending the “acquisition of such declarations

was the result of a systematic use of coercive and deceptive meetings with declarants that

exerted improper influence.”7

Inter alia, plaintiff argued the trial court had a duty and the

authority to exercise control over precertification communications between the parties and

putative class members to prevent abuse. Relying heavily on Quezada v. Schneider

Logistics Transloading & Distribution (C.D.Cal., Mar. 25, 2013, No. CV 12-2188 CAS



7

In addition, plaintiff interposed extensive evidentiary objections to statements

made in the declarations.

19

(DTBx)) 2013 U.S. Dist. Lexis 47639 (Quezada),

8 plaintiff argued the trial court had the

authority to strike the declarations submitted by 99 Cents because communications between

a defendant opposed to class certification and its current employees who are putative class

members is rife for abuse and coercion, and the deposition testimony discussed, ante,

demonstrated the declarations were obtained under deceptive and coercive circumstances.9

In its opposition to the motion to strike, 99 Cents contended the motion was “a

procedurally improper, ‘Hail Mary’ pass that cannot compensate for the weaknesses of

[plaintiff’s] bid for class certification.” It argued plaintiff relied on “scraps of isolated

evidence or isolated testimony” to show abuse, “while simply ignoring the mountain of

contrary evidence.” And, it contended the motion lacked merit because plaintiff “fail[ed] to

cite a single authority that would justify striking declarations at the class certification



8

Unlike in the federal courts of appeals (see, e.g., U.S. Cir. Ct. Rules (9th Cir.),

rules 36-1 to 36-5), in the federal district courts there is no formal provision to certify

decisions for publication. District court orders that are included in reports such as the

Federal Supplement are only “unofficially reported.” (Cal. Style Manual (4th ed. 2000)

§ 1:34, p. 35; see generally Levin, Making The Law: Unpublication in the District Courts

(2008) 53 Vill. L.Rev. 973.)

The prohibition on citing unpublished California decisions (Cal. Rules of Court, rule

8.1115(a)) does not apply to unpublished decisions from the lower federal courts. (Farm

Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18 [“Citing unpublished federal

opinions does not violate our rules.”].) Like published decisions of the lower federal

courts, unpublished decisions are not binding on us even on questions of federal law, but

they are persuasive authority. (Western Heritage Ins. Co. v. Frances Todd, Inc. (2019) 33

Cal.App.5th 976, 989, fn. 6.)

9

Among other things, plaintiff also argued the trial court should strike the

declarations because 99 Cents’ attorney strategically interposed countless, meritless

objections on the ground of attorney-client privilege to prevent plaintiff from fully

examining the witnesses to discover 99 Cents’ improper influence over the declarants.

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stage,” and the deposition testimony submitted in support of the motion did not establish a

pattern of abuse or coercion in the declaration-gathering process.

E. Hearing and Rulings on Plaintiff’s Motion to Strike and Class Certification

Motion.

In its tentative ruling, the trial court indicated it intended to deny plaintiff’s motion

to strike the declarations because it lacked statutory authority to do so and because plaintiff

failed to show striking the declarations was warranted under Quezada. In addition, the

court indicated it intended to deny plaintiff’s evidentiary objections and class certification

motion.

During the hearing on the motions, plaintiff argued this case was similar to Quezada,

and the declarations should be stricken because they were gathered from employees who

had been summoned to meetings, during work hours, without being told ahead of time what

the meetings were about, and “the declarants were never formally instructed what the

declarations were intended to be used for, or that they could be used against their own

interest at a later point.” Plaintiff argued some of the declarants who were deposed

“indicated that they had no knowledge of what the purpose of the meetings were for, and

that they really had no understanding that it was going to be used against their own interest

and for purposes of opposing the certification or the attempted certification of the class

itself.” In addition, plaintiff argued the declarations were “presented to [the employees] to

sign without having the opportunity to consider whether they wanted to attend the meetings

or not. It was essentially required of them to do so while on the clock, . . . which would

21

indicate that they faced additional pressure to proceed with going along with an interview

itself and also potentially agreeing to provide a declaration.” According to plaintiff, “the

totality of the situation itself would lead one to believe that if you are required to attend a

meeting essentially while at work at the instruction of your manager, that it would

essentially require you to go along with the situation and provide the declaration itself as a

condition of your employment . . . .”

The trial court asked plaintiff’s counsel, “Does Quezada apply to declarations from

employees who are not putative class members?” Counsel replied, “I would infer that it

does, Your Honor. From my understanding, it would.” The court stated, “Part of what you

indicated is they weren’t advised that they were submitting declarations that might be used

against them, or that it would be contrary to their interest. That, of course, would not apply

to employees who are not potential members of the class.” According to the court, “the

best-case scenario for plaintiff would be to strike the declarations of those individuals who

are putative class members. But I don’t know that that substantially helps the plaintiff,

because I understand 119 of the declarations are from nonclass members. So even if I

struck the remaining 50 or so declarations, I’m still given a substantial . . . number of

declarations that would be proper for the Court to consider.” Counsel replied that, if the

court were to strike the declarations of the putative class members, the remaining

declarations “would not prove to be [of] substantial weight” to disprove the core allegations

of the complaint.

22

99 Cents agreed with the trial court’s tentative decision that it had “no statutory basis

to strike the[] declarations,” and argued “at the class certification stage the Court can

consider all evidence and doesn’t have to rule on admissibility.” It agreed with the court’s

observations that, even if Quezada authorized the court to strike declarations from putative

class members, it did not authorize striking the declarations of nonputative class members.

In any event, 99 Cents argued Quezada was “totally factually different than the case we

have here” because the declarants in this case were not misled about what they were asked

to sign or about the nature of the lawsuit. 99 Cents argued the motion to strike “is just an

effort to get the Court to disregard the evidence that is so clearly contradictory to their case

and shows that individualized issues predominate this action. These declarations are very

common in class certification motions. Both sides often introduce declarations.”

While conceding “some language in the declarations” supported the position taken

by counsel for 99 Cents that the declarants understood what they were signing, plaintiff

argued “the testimony of the declarants themselves seem to contradict the language in the

declarations at times, especially with respect to whether they had knowledge of the intent

and purpose of the meetings and what the declarations will be used for . . . .”

After taking the motions under submission, the trial court denied plaintiff’s motion

to strike and the motion for class certification. In its order, the court concluded there was

“no statutory authority” for the motion to strike. “To the extent” the court had the authority

to strike declarations under Quezada, the court ruled plaintiff had not shown an order

striking the declarations was warranted under the circumstances. As for the class

23

certification motion, the court ruled plaintiff “failed to present sufficient evidence that there

are common issues of law or fact that predominate over the individual issues,” “failed to

show how liability will be established by common proof or a common theory of liability,”

and “failed to present a trial plan demonstrating that the individual issues, including

consideration of Defendant’s affirmative defenses, can be managed efficiently.”

99 Cents submitted a proposed ruling denying plaintiff’s motion to strike and class

certification motion, which the trial court adopted. With respect to plaintiff’s motion to

strike, the ruling stated, “The Court notes as an initial matter that there is no statutory

authority for Plaintiff’s motion to strike. This lack of authority is reason enough to deny

Plaintiff’s motion.” (Italics added.) Addressing plaintiff’s reliance on Quezada, the court

concluded, “There is no indication that anything even approximating such coercive

behavior occurred here. Defendant interviewed employees in store offices during business

hours, but there is nothing inherently coercive about that setting (absent other factors

suggesting coercion). Indeed, the declarants whom Plaintiff deposed testified that they

never ‘felt pressured to sign [a] declaration’ and did not believe there would be any

‘consequences’ if they did not.” “There is no reason to think that Defendant’s declarationgathering process was in any way improper. And even if there were such evidence,

Quezada would not justify striking declarations of employees who are not prospective class

members (121 of Defendant’s 174 declarations).”

Plaintiff timely appealed.

24

III.

DISCUSSION

A. General Class Certification Principles and Standard of Review.

“Originally creatures of equity, class actions have been statutorily embraced by the

Legislature whenever ‘the question [in a case] 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; [citations].) Drawing on the language of

Code of Civil Procedure section 382 and federal precedent, we have articulated clear

requirements for the certification of a class. The party advocating class treatment must

demonstrate the existence of an ascertainable and sufficiently numerous class, a welldefined community of interest, and substantial benefits from certification that render

proceeding as a class superior to the alternatives. (Code Civ. Proc., § 382; [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 Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)

“In reviewing a class certification order, our inquiry is ‘narrowly circumscribed.’”

(Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 967 (Noel).) “‘“The decision to certify

a class rests squarely within the discretion of the trial court, and we afford that decision

great deference on appeal, reversing only for a manifest abuse of discretion: ‘Because trial

courts are ideally situated to evaluate the efficiencies and practicalities of permitting group

25

action, they are afforded great discretion in granting or denying certification.’ [Citation.]

A certification order generally will not be disturbed unless (1) it is unsupported by

substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal

assumptions.”’ [Citation.] ‘Under this standard, an order based upon improper criteria or

incorrect assumptions calls for reversal “‘even though there may be substantial evidence to

support the court’s order.’”’” (Noel, at pp. 967-968, quoting Linder v. Thrifty Oil Co.

(2000) 23 Cal.4th 429, 436 (Linder).) “We must ‘[p]resum[e] in favor of the certification

order . . . the existence of every fact the trial court could reasonably deduce from the record

. . . .’” (Brinker, supra, 53 Cal.4th at p. 1022.)

B. This Court May Review the Interim Order Denying Plaintiff’s Motion to

Strike 99 Cents’ Declarations.

In its supplemental briefs and at oral argument, 99 Cents contended we should not

address the order denying plaintiff’s motion to strike because (1) plaintiff did not separately

appeal it, and (2) plaintiff did not challenge the validity of the order in her main briefs. Our

dissenting colleague agrees and criticizes us for addressing the merits of an unchallenged

ruling. (Dis. opn. of Slough, J., post, at p. 1; see id., at p. 14.)

True, plaintiff’s notice of appeal only mentioned the order denying her motion for

class certification. But, 99 Cents cites no authority for the proposition that the order

denying plaintiff’s motion to strike its declarations was separately appealable, and we have

found none. Indeed, in its main brief, 99 Cents expressly argued that order was “not

directly appealable.” (Italics added.)

26

There is no dispute that the order denying the class certification motion is appealable

under the “death knell doctrine.” (See, e.g., Williams v. Impax Laboratories, Inc. (2019)

41 Cal.App.5th 1060, 1066-1072.) We may also review the interim order denying the

motion to strike because: (1) it is related to the merits of the order on appeal; (2) the

decision on the motion to strike necessarily affects the order on appeal; and (3) the order

denying the motion to strike necessarily affects plaintiff’s substantial rights. (Code Civ.

Proc., § 906; Estate of Dayan (2016) 5 Cal.App.5th 29, 38-39 [addressing prerequisites for

review of nonappealable interim order]; Lopez v. Brown (2013) 217 Cal.App.4th 1114,

1130-1136 [same, in context of appeal from denial of class certification motion].) It does

not matter that plaintiff did not expressly mention the interim order in her notice of appeal.

(See Mosley v. Pacific Specialty Ins. Co. (May 26, 2020, E071287) ___ Cal.App.5th ___

[2020 Cal.App. Lexis 451, *5] [“Because the Mosleys appealed from a final judgment, we

may review any nonappealable order encompassed within the judgment, such as the trial

court’s denial of the Mosleys’ summary judgment motion, even if not identified in the

Mosleys’ notice of appeal.” (Italics added.)].)

And, even if we were to conclude the order denying plaintiff’s motion to strike was

separately appealable, California Rules of Court, rule 8.100(a)(2), requires us to liberally

construe plaintiff’s notice of appeal to embrace that order because: (1) it was entered

simultaneously on the same day and in the same written order as the denial of the class

certification motion; (2) it is reasonably clear plaintiff also intended to appeal from that

separate ruling; and (3) we perceive no prejudice to 99 Cents from doing so. (In re J.F.

27

(2019) 39 Cal.App.5th 70, 75-76 [in which this court addressed a reviewing courts’ duty to

liberally construe notices of appeal to embrace omitted orders or judgments]; see Luz v.

Lopes (1960) 55 Cal.2d 54, 59.)

Finally, although plaintiff did not fully address the denial of the motion to strike in

her main briefs, the rule that legal arguments made in the trial court but not addressed in an

opening brief are forfeited is a discretionary one, and we may consider the merits of the

arguments. (Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 234, fn. 4 [exercising

discretion to consider merits of argument not raised in opening brief]; City of Oakland v.

Hassey (2008) 163 Cal.App.4th 1477, 1495, fn. 17 [same]; see Eisenberg et al., Cal.

Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 9:21, p. 9-6

[discussing reviewing courts’ discretion to disregard issues not properly addressed in

opening brief].) Because we gave 99 Cents the opportunity to file supplemental briefs

addressing that order, and it had the opportunity to address the merits of that order during

oral argument, once again we perceive no prejudice.

28

C. The Trial Court Had the Duty and Authority to Exercise Control Over

Precertification Communications Between Parties and Putative Class Members, and It

Must Closely Scrutinize Declarations Filed in Opposition to Class Certification If They

Were Obtained Under Potentially Coercive Circumstances.

On appeal, the parties generally agree the trial court had the duty and authority to exercise

control over communications between the parties and potential class members to prevent

unfairness.10

In addition, the parties agree in principle the trial court had the power to strike or discount

the weight to be given to the declarations submitted in opposition to plaintiff’s certification

motion if the evidence demonstrated the declarations were obtained through coercion or

deception. The parties part company, however, on the question of the scrutiny to be given those

declarations.



10

We requested and received supplemental briefs from the parties addressing the

trial court’s authority and discretion under Gulf Oil, supra, 452 U.S. 89, and its progeny to

strike 99 Cents’ declarations and addressing whether the court in this case was aware of and

understood the nature and scope of that discretion.

99 Cents transcribed the Internet webcast of oral argument conducted in this appeal

and attached the transcript to its second supplemental brief. This court does not officially

transcribe oral argument, and we are aware of no authority that supports a party privately

transcribing oral argument and filing a transcript with the court. (See Eisenberg et al., Cal

Practice Guide: Civil Appeals and Writs, supra, ¶ 10:64.1, p. 10-18 [“Although most (but

not all) appellate courts commonly make audio tapes of oral argument, none follow a policy

of having written transcripts prepared.”]; Ct. App., 4th App. Dist., Practices & Proc., Oral

Argument [“The court does not transcribe oral arguments, however a recording is

available.”] available at [last viewed June 26,

2020].) Therefore, we will ignore the transcript and quotations from the second

supplemental brief. (Cf. Eisenberg et al., at ¶ 9:170.2, p. 9-51 [reviewing court may ignore

appendix to brief containing material that is not part of the record on appeal].)

29

Citing Brinker, supra, 53 Cal.4th 1004, and other published decisions in which the

courts considered declarations from putative class members submitted to oppose class

certification motions,11 99 Cents contends “California courts routinely consider employergathered declarations when determining whether class certification is appropriate, even

without close scrutiny of the declarations.” (Italics added.) But, the plaintiffs in those

cases did not contend the court had the authority to strike or discount the weight to be given

those declarations because they were obtained under coercive or abusive circumstances, so

those courts had no occasion to decide whether the declarations should have been more

closely scrutinized. “It is axiomatic that cases are not authority for propositions that are not

considered.” (California Building Industry Assn. v. State Water Resources Control Bd.

(2018) 4 Cal.5th 1032, 1043.)

As we explain, post, the trial court had the duty to carefully scrutinize 99 Cents’

declarations for coercion or abuse. And, if the court found evidence that the declarations

had been obtained through coercion or abuse, it had broad discretion to either strike some

or all of the declarations or to discount the evidentiary weight to be given the declarations

when deciding the class certification motion.



11

Also cited by 99 Cents were: Sav-On Drug Stores, Inc. v. Superior Court (2004)

34 Cal.4th 319, 339 (Sav-On), Lampe v. Queen of the Valley Medical Center (2018)

19 Cal.App.5th 832, 838, Cruz v. Sun World Internat., LLC (2015) 243 Cal.App.4th 367,

372 (Cruz), disapproved on another ground in Noel, supra, 7 Cal.5th at p. 986, fn. 15, Mies

v. Sephora U.S.A., Inc. (2015) 234 Cal.App.4th 967, 974, Dailey v. Sears, Roebuck & Co.

(2013) 214 Cal.App.4th 974, 982, and Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th

1341, 1351.

30

1. Gulf Oil.

The extant California caselaw is silent on the nature and scope of the trial court’s

authority to strike or discount the weight to be given to declarations submitted in opposition

to a class certification motion as a sanction for coercive or abusive conduct by the class

opponent. Our Supreme Court has “repeatedly directed that in the absence of controlling

state authority, California courts should utilize the procedures of rule 23 of the Federal

Rules of Civil Procedure (28 U.S.C.) to ensure fairness in the resolution of class action

suits.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1118; accord, In re Tobacco II

Cases (2009) 46 Cal.4th 298, 318; Washington Mutual Bank v. Superior Court (2001) 24

Cal.4th 906, 922; Linder, supra, 23 Cal.4th at p. 437; Green v. Obledo (1981) 29 Cal.3d

126, 145-146.)

Rule 23(d) of the Federal Rules of Civil Procedure (Rule 23(d)) provides that a

federal district court hearing a class action lawsuit may issue orders that “impose conditions

on the representative parties or on intervenors” and orders that “deal with similar

procedural matters.” (Rule 23(d)(1)(C), (d)(1)(E).) “The purpose of Rule 23(d) is to

provide the district court with the means for facilitating ‘the fair and efficient conduct of

the action.’” (County of Suffolk v. Long Island Lighting Co. (2d Cir. 1990) 907 F.2d 1295,

1304, quoting 1966 Advisory Comm. com. to Rule 23(d).)

In Gulf Oil, supra, 452 U.S. 89, the United States Supreme Court considered a

challenge to “a temporary order prohibiting all communications concerning the case from

parties or their counsel to potential or actual class members.” (Id. at p. 93.) The plaintiffs

31

argued the district court had exceeded its authority under rule 23 of the Federal Rules of

Civil Procedure and violated their rights under the First Amendment to the United States

Constitution. (Id. at p. 97.) Applying the doctrine of constitutional avoidance, the high

court addressed the issue of the district court’s authority under rule 23 first. “Because of

the potential for abuse, a district court has both the duty and the broad authority to exercise

control over a class action and to enter appropriate orders governing the conduct of counsel

and parties. But this discretion is not unlimited, and indeed is bounded by the relevant

provisions of the Federal Rules.”

12

(Id. at p. 100.)

The high court stated it was beyond question that the district court’s order interfered

with the plaintiffs’ ability to inform potential class members of the existence of the lawsuit

and made it more difficult for plaintiffs “to obtain information about the merits of the case

from persons they sought to represent.” (Gulf Oil, supra, 452 U.S at p. 101.) “Because of

these potential problems, an order limiting communications between parties and potential



12

Although California courts have not considered the precise questions presented in

this case, they have generally followed Gulf Oil in holding a trial court has the authority

and duty to ensure fairness in class actions. “Once the trial court has identified a potential

abuse, it ‘has both the duty and the broad authority to exercise control over a class action

and to enter appropriate orders governing the conduct of counsel . . . .’” (Howard Gunty,

supra, 88 Cal.App.4th at p. 579, quoting Gulf Oil, supra, 452 U.S. at p. 100.)

“Precertification communication carries the potential for abuse. Thus, any ‘order limiting

communications between parties and potential class members should be based on a clear

record and specific findings that reflect a weighing of the need for a limitation and the

potential interference with the rights of the parties.’ (Gulf Oil Co. v. Bernard, supra, 452

U.S. at p. 101 . . . .) The court should identify the potential abuses and weigh them against

the rights of the parties under the circumstances. (Id. at p. 102 . . . .)” (Howard Gunty, at

p. 580; accord, Lofton, supra, 230 Cal.App.4th at p. 1067; Parris, supra, 109 Cal.App.4th

at p. 296.)

32

class members should be based on a clear record and specific findings that reflect a

weighing of the need for a limitation and the potential interference with the rights of the

parties. Only such a determination can ensure that the court is furthering, rather than

hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule

23. In addition, such a weighing—identifying the potential abuses being addressed—

should result in a carefully drawn order that limits speech as little as possible, consistent

with the rights of the parties under the circumstances. As the court stated in Coles v.

Marsh, 560 F.2d 186, 189 (CA3), cert. denied, 434 U.S. 985 (1977): [¶] ‘[T]o the extent

that the district court is empowered . . . to restrict certain communications in order to

prevent frustration of the policies of Rule 23, it may not exercise the power without a

specific record showing by the moving party of the particular abuses by which it is

threatened. Moreover, the district court must find that the showing provides a satisfactory

basis for relief and that the relief sought would be consistent with the policies of Rule 23

giving explicit consideration to the narrowest possible relief which would protect the

respective parties.’” (Gulf Oil, at pp. 101-102, fns. omitted.)

The Supreme Court looked “in vain for any indication of a careful weighing of

competing factors” and stated the district court had “failed to provide any record useful for

appellate review.” (Gulf Oil, supra, 452 U.S. at p. 102.) The court held the district court

had abused its discretion because “[t]he record reveals no grounds on which the District

Court could have determined that it was necessary or appropriate to impose this order.”

(Id. at p. 103.) Although the high court did not need to address the merits of plaintiffs’

33

constitutional challenge, or decide “what standards are mandated by the First Amendment

in this kind of case,” it noted the district court’s order “involved serious restraints on

expression” that should have “counsel[ed] caution on the part of a district court in drafting

such an order,” and should have focused the district court’s “attention to whether the

restraint [was] justified by a likelihood of serious abuses.” (Id. at p. 104.)

As for the district court’s authority under rule 23 of the Federal Rules of Civil

Procedure, the high court once again recognized “the possibility of abuses in class-action

litigation” and agreed with defendant “that such abuses may implicate communications

with potential class members.” (Gulf Oil, supra, 452 U.S. at p. 104.) However, the court

made clear that “the mere possibility of abuses does not justify routine adoption of a

communications ban that interferes with the formation of a class or the prosecution of a

class action in accordance with the Rules.” (Ibid.) The district court’s broad prohibition on

communication with potential class members was unjustified “in the absence of a clear

record and specific findings of need.” (Ibid.) Finally, the high court noted “[o]ther, less

burdensome remedies may be appropriate. Indeed, in many cases there will be no problem

requiring remedies at all.” (Ibid., fn. omitted.)

2. Gulf Oil’s progeny.

Since Gulf Oil, supra, 452 U.S. 89, the lower federal courts have held a district court

hearing a class action has the duty and authority to exercise control over precertification

communications between either side in the litigation and putative class members when

those communications are coercive, may have the effect of chilling the rights of those

34

putative class members, and threaten to undermine the fairness and due process of class

actions. (See Rossini v. Ogilvy & Mather, Inc. (2d Cir. 1986) 798 F.2d 590, 601 [affirming

“order requiring prior court approval of virtually all oral and written communications

between the parties and potential members of the class”].) Relevant here, the federal courts

have recognized the potential for coercion when class opponents unilaterally communicate

with potential class members with whom they have an ongoing business relationship. (E.g.,

Kleiner v. First Nat’l Bank (11th Cir. 1985) 751 F.2d 1193, 1202 [“A unilateral

communications scheme . . . is rife with potential for coercion. ‘[I]f the class and the class

opponent are involved in an ongoing business relationship, communications from the class

opponent to the class may be coercive.’”]; Sorrentino v. ASN Roosevelt Center, LLC

(E.D.N.Y. 2008) 584 F.Supp.2d 529, 533 [same].)

Courts are especially sensitive to possible coercion in unilateral communications

between a class opponent and its current employees who are putative class members. (See,

e.g., Crosby v. Stage Stores, Inc. (M.D.Tenn. 2019) 377 F.Supp.3d 882, 889 [“[T]he

potential for coercion and abuse of the class action is especially high when there is an

ongoing business relationship between the two parties, particularly when that relationship is

one of employer to employee.”]; Camp v. Alexander (N.D.Cal. 2014) 300 F.R.D. 617, 621

[“[A]n ongoing employer-employee relationship is particularly sensitive to coercion.”];

Giles v. St. Charles Health Systems, Inc. (D.Or. 2013) 980 F.Supp.2d 1223, 1226 [“There is

a ‘heightened potential for coercion’ where putative class members and the defendant are in

an employer-employee relationship.”]; Urtubia v. B.A. Victory Corp. (S.D.N.Y. 2012) 857

35

F.Supp.2d 476, 485 [“The Court finds that Defendants’ workplace relationship with current

employees, and their knowledge of sensitive information about current and former

employees, put them in a position to exercise strong coercion in connection with potential

class members’ decisions regarding participation in this litigation.”]; Guifu Li v. A Perfect

Day Franchise, Inc. (N.D.Cal. 2010) 270 F.R.D. 509, 517 [“Courts have . . . recognized

that in the context of an employer/worker relationship, there is a particularly acute risk of

coercion and abuse when the employer solicits opt-outs from its workers.”]; Belt v.

EmCare, Inc. (E.D.Tex. 2003) 299 F.Supp.2d 664, 668 (Belt) [“As a letter sent from an

employer to its employees, any statements in EmCare’s letter have heightened potential for

coercion because where the absent class member and the defendant are involved in an

ongoing business relationship, such as employer-employee, any communications are more

likely to be coercive.” (Fn. omitted.)].)

Indeed, some courts have concluded an ongoing employer-employee relationship

between the class opponent and putative class members is inherently conducive to coercive

influence. (Pacheco v. Aldeeb (W.D.Tex. 2015) 127 F.Supp.3d 694, 698 [“‘Speech

between parties with an ongoing business relationship is inherently conducive to coercive

influence, and an employer-employee relationship is a salient example of this type of

ongoing business relationship.’”]; Piekarshi v. Amedisys Illinois, LLC (N.D.Ill. 2013) 4

F.Supp.3d 952, 955 [“[W]here there is an ongoing business or employment relationship

between the class and the class opponent, communications may be inherently coercive.”];

Bublitz v. E.I. duPont de Nemours & Co. (S.D.Iowa 2000) 196 F.R.D. 545, 548 [“Where

36

the defendant is the current employer of putative class members who are at-will employees,

the risk of coercion is particularly high; indeed, there may in fact be some inherent coercion

in such a situation.”]; see 3 Newberg on Class Actions (5th ed. 2018) § 9:7.)

“When an ‘ongoing business relationship, such as employer-employee exists,’ courts

review communications for coercion with heightened scrutiny.” (Patel v. 7-Eleven, Inc.

(D.Mass. 2018) 322 F.Supp.3d 244, 251.) Courts must be cognizant of the danger of coercion

and exercise a healthy skepticism when assessing the evidentiary weight to be given to

employee statements. “Common sense and prudence” instruct that affidavits from a

defendant’s current employees do little to rebut evidence in support of a plaintiff’s claims

“insofar as they were given under potentially coercive circumstances . . . .” (Brown v. Nucor

Corp. (4th Cir. 2015) 785 F.3d 895, 913 (Brown).) “Of course, companies may investigate

[the plaintiff’s] allegations . . . and take statements from employees. But when it comes to

assessing the probative value of those statements—when weighed against the numerous

declarations of employees who took the often grave risk of accusing an employer of a

workplace violation—courts should proceed with eyes open to the imbalance of power and

competing interests.” (Id. at p. 914; see id. at p. 913 [affirming district court’s decision to

give “limited weight” to approximately 80 declarations from current employees “given under

potentially coercive circumstances”].)

Although the mere existence of a potentially or inherently coercive relationship is

insufficient to support an order entirely striking employee declarations submitted in

opposition to a class certification motion, or to support a finding severely discounting the

37

weight to be given those declarations (Gulf Oil, supra, 452 U.S. at p. 104), a compelling

showing that the employees were misled or that the declarations were not freely and

voluntarily given will suffice. (E.g., Longcrier v. HL-A Co., Inc. (S.D.Ala. 2008)

595 F.Supp.2d 1218, 1225-1230 (Longcrier) [striking 245 declarations from putative class

members submitted in opposition to class certification motion based on “compelling

showing” defendant engaged in deceptive and misleading practices when procuring the

declarations].)

Finally, the district court’s duty and authority to prevent abusive or coercive

communications by the parties extends beyond statements obtained from current putative

class members. “The prophylactic power accorded to the court presiding over a putative

class action under Rule 23(d) is broad; the purpose of Rule 23(d)’s conferral of authority is

not only to protect class members in particular but to safeguard generally the administering

of justice and the integrity of the class certification process.” (O’Connor v. Uber

Technologies, Inc. (N.D.Cal., May 1, 2014, No. C-13-3826 EMC) 2014 U.S. Dist. Lexis

61066, *9 (O’Connor), italics added; accord, Slaight v. Tata Consultancy Services, Ltd.

(N.D.Cal., Sept. 10, 2018, No. 15-cv-01696-YGR) 2018 U.S. Dist. Lexis 154127, *7

(Slaight); McKee v. Audible, Inc. (C.D.Cal., Apr. 6, 2018, No. CV 17-1941-GW(Ex)) 2018

U.S. Dist. Lexis 179978, *10 (McKee).)

In O’Connor, the class opponent, Uber Technologies, argued, “‘Rule 23 provides no

basis for “correcting” or restricting communications with persons who are not putative class

members at the time of communication’” and, therefore, the court hearing a class action by

38

current Uber drivers had no authority to restrict the company’s ability to issue arbitration

agreements to people who had not yet used a smartphone application to drive for Uber.

(O’Connor, supra, 2014 U.S. Dist. Lexis 61066 at p. *10.) The district court disagreed.

“As noted, Rule 23(d) grants a court ‘broad authority to exercise control over a class

action and to enter appropriate orders governing the conduct of counsel and parties’ so that

it may ensure ‘fair . . . conduct of the action’ and ‘protect the integrity of the class and the

administration of justice.’ [Citations.] The scope of the Court’s authority—though

certainly not unlimited, as Gulf Oil explains—is not confined by the wooden approach

advocated by Uber. Such an approach ignores the broad purpose of Rule 23(d).

[Citations.] Consistent with that purpose, the Supreme Court has recognized that a court’s

authority over communications under Rule 23(d) extends beyond ‘actual class members’ to

‘potential class members’ because ‘the possibility of abuses in class-action litigation . . .

may implicate communications with potential class members.’” (O’Connor, supra, 2014

U.S. Dist. Lexis 61066 at pp. *11-*12.) “The Court has authority to regulate

communications which jeopardize the fairness of the litigation even if those

communications are made to future and potential putative class members. To constrain the

authority of the court under Rule 23(d) to regulating only communications between an

employer and current class or putative class members, to the exclusion of future class

members, would undermine the court’s ability to insure the ‘fair . . . conduct of the action,’

and ‘protect the integrity of the class and the administration of justice.’ [Citations.] It

would also undermine the court’s ability to control communications which ‘threaten to

39

influence the choice of remedies’ in class actions. [Citation.] Under Uber’s proposed rule,

defendants could unilaterally limit the size and scope of the class to be certified without

being subject to court supervision.” (O’Connor, at pp. *13-*14.)

3. Quezada.

Quezada, supra, 2013 U.S. Dist. Lexis 47639, on which plaintiff primarily relied for

her motion to strike, arose from somewhat similar circumstances as this case. There, the

defendant opposing class certification—Schneider Logistics Transloading & Distribution

(SLTD)—obtained 106 declarations from its current employees “regarding the conduct

alleged in the plaintiffs’ complaint.” (Id. at p. *2.) The declarations were obtained during

interviews conducted by SLTD at its Mira Loma warehouses after the complaint was filed.

(Ibid.) “These meetings were held in a man[a]ger’s office during work hours, and the

employees were ordered to report to these meetings either over a loudspeaker or by having

a supervisor escort them to the meetings. Some employees did not understand why they

were being summoned to the office, and were worried that the meeting was going to focus

on discipline or an accusation of misconduct. One SLTD employee . . . asked his

supervisor what the meeting was about, and was told that he ‘would just have to go in and

find out.’” (Id. at pp. *2-3, record citations omitted.)

Once the employees arrived at the office, lawyers for SLTD explained: “1. That the

employee’s participation in the meeting was voluntary, and that she or he could end their

participation at any time and for any reason. [¶] 2. That the associate’s participation in the

drafting and signing of a declaration was completely voluntary. [¶] 3. That if the associate

40

decided to sign a declaration, she or he could make sure that it is truthful and accurate. [¶]

4. That SLTD cannot retaliate against the associate, or reward the associate, based on the

information she or he provided in the meeting, or as a result of the employee’s decision to

participation, or not to participate, in the meeting. [¶] 5. That the employee was a potential

member of a class of individuals on whose behalf a lawsuit has been brought against SLTD

with claims pertaining to the subject matter discussed in the meeting, which included issues

of unpaid wages. [¶] 6. That the lawyers present represented SLTD and not the employees.

[¶] [and] 7. That the associate could consult with an attorney of her or his choosing if she

had any questions about the process.” (Quezada, supra, 2013 U.S. Dist. Lexis 47639 at pp.

*3-*4, fn. omitted.)

Before questioning the employees, SLTD’s lawyers also told the employees “that the

meetings were being conducted in connection with the SLTD lawyers’ ‘internal

investigation about the conditions at the warehouse.’ These statements led at least some

SLTD employees to believe that their conversation was informal, and that it would be kept

inside the company.” (Quezada, supra, 2013 U.S. Dist. Lexis 47639 at p. *5, record

citations omitted.) The meetings lasted between 30 and 40 minutes, during which the

lawyers focused their questions on the conduct alleged in the plaintiffs’ complaint. (Ibid.)

“At the end of the interviews, the employees were asked to sign a declaration. The SLTD

lawyers did not, however, tell the employees that the document was a sworn declaration

that could be used in plaintiffs’ lawsuit to limit the employees’ potential recovery. Instead,

the employees were told that the document was a ‘consent form’ stating that the employee

41

had voluntarily agreed to be interviewed. SLTD attorneys also stated that the only way an

employee could receive a copy of the declaration was to sign it. Some employees felt that

they were being pressured into signing the declarations, and in total, only six employees

declined to sign declarations.” (Id. at pp. *5-*6, record citations omitted.)

Plaintiffs moved the district court for an order striking the declarations because they

were obtained under coercive and unethical circumstances. (Quezada, supra, 2013 U.S.

Dist. Lexis 47639 at p. *6.) After acknowledging that defendants in class actions lawsuits

are not barred from communicating with prospective class members before certification, the

district court noted that “several decisions have recognized [that] a limitation on precertification communications is appropriate when misleading, coercive, or improper

communications have taken place.” (Id. at p. *10, citing Maddock v. KB Homes, Inc.

(C.D.Cal. 2007) 248 F.R.D. 229, 236 & Longcrier, supra, 595 F.Supp.2d at p. 1227.) The

district court also noted other courts had recognized the heightened risk of coercion when a

class opponent communicates with putative class members with whom the class opponent

has an ongoing employer-employee relationship. (Quezada, at p. *10, citing Belt, supra,

299 F.Supp.2d at p. 668 & Mevorah v. Wells Fargo Home Mortgage (N.D.Cal., Nov. 15,

2005, No. C 05-1175 MHP) 2005 U.S. Dist. Lexis 28615, *13.) “In considering whether

pre-certification communications between employers and employees are sufficiently

deceptive or coercive to warrant relief, courts have considered several factors, including

whether the employer adequately informed the employees about: (1) the details underlying

the lawsuit, (2) the nature and purpose of the communications, and (3) the fact that any

42

defense attorneys conducting the communications represent the employer and not the

employee. [Citation.] Additionally, federal courts in California have found that any

violation of California Rules of Professional Conduct 3-600 [addressing, inter alia,

communications between counsel for a corporation and its employees] weighs in favor of

finding that improper communications have taken place.” (Quezada, at pp. *11-*12, citing

Longcrier, at p. 1227, Maddock, at p. 237 & Mevorah, at pp. *4-*5.)

SLTD argued the interviews of its employees were not coercive or deceptive

because the employees were told the attorney-interviewers represented the company, the

employees were free to leave and to refuse to sign a declaration, and they were free to make

changes to their declarations before signing. (Quezada, supra, 2013 U.S. Dist. Lexis 47639

at pp. *12-*13.) The district court found that “[w]hile defendant has pointed to some

evidence tending to show that no improper communications have occurred, . . . clear

countervailing evidence shows that SLTD’s communications with its employees were

improper. Even if defendant provided its employees with some information about the

lawsuit and with notice that the attorneys represented SLTD, the communications were

deceptive because the interviewing attorneys failed to notify the employees of the nature

and purpose of the communications. Crucially, the employees were never told that the

purpose of the interviews was to gather evidence to be used against the employees in a

lawsuit. In fact, the employees were not even told that the document they were asked to

sign at the close of the interview was a sworn declaration, nor were they apprised of the

significance of signing a declaration under penalty of perjury. The employees were instead

43

misleadingly told that the interviews were only an ‘internal investigation.’” (Id. at pp. *13-

*14, record citations omitted.) “Failing to inform the employees of the evidence-gathering

purpose of the interviews rendered the communications fundamentally misleading and

deceptive because the employees were unaware that the interview was taking place in an

adversarial context, and that the employees’ statements could be used to limit their right to

relief.” (Id. at p. *14.) The court also concluded the attorneys’ communications with

employees violated rule 3-600(D) of the California Rules of Professional Conduct. (Id. at

pp. *14-*15.)

The district court concluded the deceptive nature of the employee-interviews was

enough to support a finding that improper communications had taken place, but the court

also found the interviews were coercive, “which provides [an] additional reason to grant

relief.” (Quezada, supra, 2013 U.S. Dist. Lexis 47639 at p. *16.) “The interviews were

conducted in a coercive manner because the employees did not attend the interviews on

their own initiative, but instead were summoned into attendance over a loudspeaker or

directly ordered to attend by their supervisors. The employees were not given the option of

simply not attending. Defendant contends that the meetings were nonetheless not coercive

because the employees were ‘properly notified of the voluntary nature of the meeting[s].’

This notice was hardly sufficient, however, because the employees were ordered to attend

the meetings, and it was therefore confusing and slightly self-contradictory for SLTD’s

lawyers to inform the employees that their presence at the interviews was voluntary.

Moreover, while defendant makes much of the fact that the employees were told they were

44

free to leave the interviews once they began, only five out of the nearly one-hundred and

twenty employees interviewed actually chose to leave, which suggests that the interviewing

attorney’s grant of permission to leave did little to dispel the aura of coercion.” (Id. at pp.

*16-*17.) Finally, the district court ruled the way in which the interviews were conducted

demonstrated they were coercive and the employees felt pressured into signing the

declarations. The court quoted one employee as stating, “‘The attorney said that I didn’t

have to sign the paper, but the way he said it and the way in which he forcefully put the

paper in front of me made me feel like I had no choice but to sign the document.’” (Id. at

p. *17.)

Based on its findings that the communications between SLTD and its employees

were coercive and misleading, the court granted the plaintiffs’ motion, ordered that any

declarations obtained during the interviews would be disregarded entirely, ordered the

issuance of a corrective notice to potential class members, and ordered SLTD to refrain

from further communications with potential class members without prior court permission.

(Quezada, supra, 2013 U.S. Dist. Lexis 47639 at pp. *18-*19.)

4. Irvine v. Destination Wild Dunes Management, Inc.

Although the procedural posture in Irvine v. Destination Wild Dunes Management,

Inc. (D.S.C. 2015) 132 F.Supp.3d 705 (Irvine) differs from our case, it is nonetheless

instructive. The plaintiff there moved the district court for an order striking declarations

obtained by the defendants from putative class members during one-on-one meetings

conducted before the court conditionally certified a class and an order prohibiting further ex

45

parte communications between defendants and putative class members. (Id. at p. 706.)

“Based upon affidavits provided by three employees of Defendants who were then potential

members of the putative class in this matter, employees were directed by a supervisory or

human resources department employee of Defendants to report during work hours to a

room to meet with defense counsel. When the employees appeared, they were told by

defense counsel that the meeting was voluntary. The employees were then provided a

written statement to sign which described the nature of the pending FLSA[13]

litigation,

disclosed that the employee may have an adverse interest to the Defendants and informed

the employee that no retaliation would occur based upon their answers or willingness to

participate.” (Irvine, at p. 706, record citations omitted.)

The district court acknowledged the general rule that an employer and its attorneys

are not prohibited from meeting with and communicating with putative class members after

a lawsuit is filed but before the class is certified, so it concluded the defendants had not

engaged in improper ex parte communications. (Irvine, supra, 132 F.Supp.3d at p. 706.)

Moreover, because the district court had already granted the motion to conditionally certify

the class, the court concluded the motion to limit further communication with putative class

members was moot. (Id. at p. 707.) “The question remains what weight should be given to



13

In Hoffmann-La Roche v. Sperling (1989) 493 U.S. 165, 171-174, the United

States Supreme Court held the principles established in Gulf Oil apply to collective actions

under the FLSA (Fair Labor Standards Act of 1938) (29 U.S.C. § 201 et seq.). “Hoffmann

was brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

However, since the ADEA incorporates § 16(b) of the FLSA into its enforcement scheme,

the same rules govern judicial management of class actions under both statutes.” (Shaffer

v. Farm Fresh, Inc. (4th Cir. 1992) 966 F.2d 142, 147, fn. 5.)

46

the sworn declarations procured by defense counsel from the one-to-one meetings with

putative class members prior to conditional class certification.” (Ibid.) Following Brown,

the district court recognized the need “to ‘proceed with eyes open to the imbalance of

power and competing interests’” when “assessing the probative value” to be given the

employee declarations obtained under potentially coercive circumstances. (Irvine, at

p. 707, quoting Brown, supra, 785 F.3d at pp. 913-914.)

“A review of the record before the Court suggests that while defense counsel appears

to have made an effort to communicate orally and in writing to Defendants’ employees that

their participation and statements were entirely voluntary, the reality was that the

employees received a direct order from supervisory or human resource personnel to appear

during work hours while on the company’s clock. The employees, who were low-paid and

at-will under South Carolina law, were made aware that their employer had been sued, was

fighting the suit and sought the help of employees in resisting the litigation. To accept

Defendants’ argument that the employees’ statements were freely and voluntarily given

without any hint of coercion, this Court would . . . ‘have to pretend not to know as judges

what we know as men.’” (Irvine, supra, 132 F.Supp.3d at p. 707.)

Because the employee declarations had been presented in opposition to the motion

for conditional class certification, and that motion had already been granted, the district

court ruled the motion to strike the declarations was technically moot. (Irvine, supra,

132 F.Supp.3d at p. 707.) However, the court severely limited the future use of the

declarations. “Any future effort by Defendants to use the employee statements will be

47

evaluated by this Court under the standards established in Brown v. Nucor Corp. Further,

in order that these statements not taint, in any way, the future discovery in this case, the

parties are directed not to use the statements in the course of any depositions in this matter,

including for purposes of impeachment of class members who may have signed such

statements. Further, no party should attempt to use the statements at trial without the

explicit authorization of the Court.” (Irvine, at p. 707.)

D. The Record Demonstrates the Trial Court Was Unaware of or Misunderstood

Its Duty and Authority to Closely Scrutinize the Declarations Submitted in Opposition to

Plaintiff’s Class Certification Motion and to Strike or Discount the Weight to Be Given

Those Declarations if the Court Found Evidence of Coercion or Abuse.

In its supplemental brief, 99 Cents contends the trial court did, in fact, understand

and properly exercise its discretion when it denied plaintiff’s motion to strike. In addition,

99 Cents argues that, even if we conclude the court did not understand its discretion, we

must affirm the order if there was any valid reason for it. Neither argument is persuasive.

Normally, we must presume the trial court was aware of and understood the scope of

its authority and discretion under the applicable law. (People v. Stowell (2003) 31 Cal.4th

1107, 1114 [“[W]e apply the general rule ‘that a trial court is presumed to have been aware

of and followed the applicable law.’”]; McDermott Will & Emery, LLP v. Superior Court

(2017) 10 Cal.App.5th 1083, 1103 [“We presume the trial court knew and properly applied

the law absent evidence to the contrary.”]; Keep Our Mountains Quiet v. County of Santa

Clara (2015) 236 Cal.App.4th 714, 741 [“‘It is a basic presumption indulged in by

48

reviewing courts that the trial court is presumed to have known and applied the correct

statutory and case law in the exercise of its official duties.’”].) “This rule derives in part

from the presumption of Evidence Code section 664 ‘that official duty has been regularly

performed.’” (People v. Stowell, at p. 1114.) The rebuttable presumption under section

664 “‘“affect[s] the burden of proof” (Evid. Code, § 660), meaning that the party against

whom it operates . . . has “the burden of proof” as to the nonexistence of the presumed fact.

(Evid. Code, § 606 . . . .)’” (In re Raphael P. (2002) 97 Cal.App.4th 716, 738.)

If the record demonstrates the trial court was unaware of its discretion or that it

misunderstood the scope of its discretion under the applicable law, the presumption has

been rebutted, and the order must be reversed. (See Noel, supra, 7 Cal.5th at p. 968 [“[A]n

order based upon improper criteria or incorrect assumptions calls for reversal ‘“even though

there may be substantial evidence to support the court’s order.”’”].) “‘[A]ll exercises of

legal discretion must be grounded in reasoned judgment and guided by legal principles and

policies appropriate to the particular matter at issue.’ [Citations.] Therefore, a

discretionary decision may be reversed if improper criteria were applied or incorrect legal

assumptions were made. [Citation.] Alternatively stated, if a trial court’s decision is

influenced by an erroneous understanding of applicable law or reflects an unawareness of

the full scope of its discretion, it cannot be said the court has properly exercised its

discretion under the law. [Citations.] Therefore, a discretionary order based on the

application of improper criteria or incorrect legal assumptions is not an exercise of

informed discretion and is subject to reversal even though there may be substantial

49

evidence to support that order. [Citations.] If the record affirmatively shows the trial court

misunderstood the proper scope of its discretion, remand to the trial court is required to

permit that court to exercise informed discretion with awareness of the full scope of its

discretion and applicable law.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16.)

Here, 99 Cents contends the record demonstrates the trial court properly understood

and exercised its duty and discretion because “[t]he issues of coercion and abuse were

squarely presented to the court and argued during the motion hearing, and the court’s ruling

carefully scrutinized the circumstances and content of the declarations.” That the issues

were briefed and argued does not demonstrate the court understood the scope of its duty

and authority under Gulf Oil and its progeny. To the contrary, in its tentative ruling and

order on submitted matters, the court concluded it lacked any “statutory authority” to strike

the declarations. And, in its written ruling,14 it ruled the lack of statutory authority “is

reason enough to deny Plaintiff’s motion.” (Italics added.)



14

99 Cents contends the trial court’s oral statements made during the April 20,

2017 hearing demonstrate the court engaged in an extensive analysis of coercion and did, in

fact, understand the scope of its duty and discretion. But the court did not orally rule on the

motion to strike from the bench. Instead, the court took the matter under submission and

issued a one-page written order six days later. And on August 10, 2017, the court adopted

the proposed ruling submitted by 99 Cents. It is those written orders that are on appeal, and

“we may not use the court’s oral statements to impeach its written order.” (Williams v.

Superior Court (2013) 221 Cal.App.4th 1353, 1361.) We may look to the court’s analysis

offered during the class certification hearing only to the extent it is consistent with the

reasoning set forth in the court’s final written order and sheds further light on the propriety

of that reasoning. (See Benton v. Telecom Network Specialists, Inc. (2013)

220 Cal.App.4th 701, 726 [concluding trial court used improper criteria in denying class

certification based on the court’s “written order (as well as statements made at the motion

hearing)”].)

50

Although the trial court did address Quezada, supra, 2013 U.S. Dist. Lexis 47639, in

its written ruling and concluded the facts from that case were distinguishable, it is not

entirely clear the court scrutinized the declarations from the perspective that communications

between a class opponent and its current employees are fraught with potential abuse. For

instance, the court stated, “There is no indication that anything even approximating such

coercive behavior occurred here. Defendant interviewed employees in store offices during

business hours, but there is nothing inherently coercive about that setting (absent other

factors suggesting coercion).” (Italics added.) This ignores the fact that the declarants were

summoned to the meetings and, as far as the record indicates, they were not told they could

decline to be interviewed. Even if we were to disagree with the courts that have concluded a

current employer-employee relationship between the class opponent and putative class

members is inherently coercive, we cannot ignore the reality that such a relationship carries a

heightened potential for coercion and abuse, and courts should be cognizant of the imbalance

of power and interests when carefully reviewing employee statements. (See Brown, supra,

785 F.3d at p. 914; Irvine, supra, 132 F.Supp.3d at p. 707.)

Moreover, the trial court’s statements during the hearing and its written ruling

demonstrate it misunderstood the scope of its authority. The court stated, “even if there

were such evidence [of coercion or abuse], Quezada would not justify striking declarations

of employees who are not prospective class members (121 of Defendant’s 174

declarations).” (Italics added.) Although most of the declarations came from employees

who are not putative class members, and we assume those declarants are not potential

51

future class members either, we believe the court had the duty to scrutinize all the

declarations and the authority to strike any of them if it found evidence of coercion or

abuse. As noted, ante, the court’s duty and authority are not limited to protecting putative

class members from coercive or abusive communications from parties but extend more

generally to ensuring the fairness and integrity of the class certification process. (Slaight,

supra, 2018 U.S. Dist. Lexis 154127 at p. *7; McKee, supra, 2018 U.S. Dist. Lexis 179978

at p. *10; O’Connor, supra, 2014 U.S. Dist. Lexis 61066 at p. *9.)

The distinction drawn by the trial court and 99 Cents between declarations obtained

from putative class members and those obtained from nonputative class members is not

meaningful in this context. Although the potential for coercion and abuse might be more

acute when a class opponent communicates with its employees who are putative class

members, the imbalance of power in the employer-employee relationship exists for

nonclass members as well. And the need to protect the fairness and integrity of the class

certification process is no less important when the communications are directed at nonclass

members. (Cf. O’Connor, supra, 2014 U.S. Dist. Lexis 61066 at p. *14.) If employee

statements used to oppose class certification are obtained through coercion or abuse, the

integrity and fairness of the certification process is undermined whether the statements

come from putative class members or not. (Ibid.)

Citing Cruz, supra, 243 Cal.App.4th 367 and Linder, supra, 23 Cal.4th 429,

99 Cents argues that, even if we conclude the trial court misunderstood its discretion to

strike the declarations, we must still affirm the order if there was any valid reason for

52

denying plaintiff’s motion. In part, Cruz stated the standard of review in class certification

appeals as thus: “‘“Ordinarily, appellate review is not concerned with the trial court’s

reasoning but only with whether the result was correct or incorrect. [Citation.] But on

appeal from the denial of class certification, we review the reasons given by the trial court

for denial of class certification, and ignore any unexpressed grounds that might support

denial. [Citation.] We may not reverse, however, simply because some of the court’s

reasoning was faulty, so long as any of the stated reasons are sufficient to justify the order.

[Citation.]” [Citations.] Any valid, pertinent reason will be sufficient to uphold the trial

court’s order.’” (Cruz, at p. 373.) But, Cruz also stated, “‘“A certification order generally

will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on

improper criteria, or (3) it rests on erroneous legal assumptions.”’” (Cruz, at p. 373, italics

added; accord, Linder, supra, 23 Cal.4th at p. 435.)

And as indicated, ante, our Supreme Court recently quoted the standard of review as

articulated by Linder, which included the following: “‘[A]n order based upon improper

criteria or incorrect assumptions calls for reversal “‘even though there may be substantial

evidence to support the court’s order.’”’” (Noel, supra, 7 Cal.5th at pp. 967-968, italics

added, quoting Linder, supra, 23 Cal.4th at p. 436.) In other words, if an order denying a

class certification motion is based on incorrect legal assumptions or a misunderstanding of

53

the applicable law, there can be no valid reason for the order.

15

(Ayala v. Antelope Valley

Newspapers, Inc. (2014) 59 Cal.4th 522, 537 (Ayala) [“[W]hen the supporting reasoning

reveals the court based its [class certification] decision on erroneous legal assumptions

about the relevant questions, that decision cannot stand.”]; Brinker, supra, 53 Cal.4th at

p. 1050 [“A grant or denial of class certification that rests in part on an erroneous legal

assumption is error; without regard to whether such a certification [ruling] might on other

grounds be proper, it cannot stand.” (Italics added.)].)

99 Cents and our dissenting colleague contend any error in the order denying the

motion to strike was harmless. (Dis. opn. of Slough, J., post, at pp. 1-2, 15, 25-31.) But, as

noted, the normal remedy in such a situation is to remand for the court to exercise informed

discretion, without deciding whether the error was harmless. (F.T. v. L.J., supra,

194 Cal.App.4th at p. 16.) For example, recently, a panel of this court reversed and

remanded for the trial court to apply the correct legal standard and to reconsider a ruling.

(City of Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 795 [“Because the trial



15

The language from Cruz quoted by 99 Cents—that a reviewing court cannot

reverse simply because “some of the court’s reasoning was faulty”—originates from the

decision in Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830.

(Cruz, supra, 243 Cal.App.4th at p. 373, quoting Thompson v. Automobile Club of

California (2013) 217 Cal.App.4th 719, 726 (Thompson), disapproved on another ground in

Noel, supra, 7 Cal.5th at p. 986, fn. 15, in turn quoting Kaldenbach, at p. 726.) Kaldenbach

cited the decision in Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, for that

proposition. But, although Caro stated the general rule that a class certification order may

be affirmed on any valid reason, it also stated, “Erroneous legal assumptions or improper

criteria may require reversal ‘even though there may be substantial evidence to support the

court’s order.’” (Id. at pp. 655-656, quoted with approval by Linder, supra, 23 Cal.4th at

p. 436.)

54

court applied an improper legal standard to the City’s motion for appointment of a receiver

by not addressing the two requirements expressly stated in the statute and instead

addressing an issue the statute does not empower the court to decide, we conclude the court

abused its discretion. [Citation.] Therefore, we reverse the judgment and remand for the

trial court to reconsider the City’s motion and determine whether the requirements of [the

statute] have been satisfied.”].) We did not first ask whether the error was harmless. And

as noted, the Supreme Court has expressly stated a ruling on a class certification motion

that rests on an erroneous legal assumption “cannot stand.” (Ayala, supra, 59 Cal.4th at

p. 537; Brinker, supra, 53 Cal.4th at p. 1050.) The court did not say such a ruling cannot

stand unless the error is harmless. Until the court says otherwise, we are bound by that

rule. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In some circumstances, such as criminal sentencing, a reviewing court will not

perform the idle act of remanding for the exercise of informed discretion when the record

clearly demonstrates the trial court would have reached the same result had it properly

understood the nature and scope of its discretion. (E.g., People v. McDaniels (2018)

22 Cal.App.5th 420, 425; see Civ. Code, § 3532 [“The law neither does nor requires idle

acts.”].) On this record, however, we cannot say with any certainty that the trial court

would have denied the class certification motion had it properly understood its duty to

carefully review all 174 declarations for potential abuse, not just the declarations from

putative class members, and if it understood the scope of its discretion to strike or discount

the weight to be given the declarations.

55

In sum, we conclude the record affirmatively demonstrates the trial court

misunderstood its duty to carefully scrutinize the declarations submitted by 99 Cents in

opposition to the class certification motion for coercion and abuse, and misunderstood the

scope of its discretion to strike or discount the evidentiary weight to be given to those

declarations if it found evidence of coercion and abuse.16

Therefore, we reverse and

remand for the trial court to reconsider plaintiff’s motion to strike and exercise its informed

discretion. (F.T. v. L.J., supra, 194 Cal.App.4th at p. 16.)



16

Finally, 99 Cents also argues that, if there is any ambiguity in the record about

whether the trial court misunderstood its duty or authority, we should not resolve the

ambiguity against its order, and we should refrain from substituting our judgment about the

weight to be given the declarations. Because we conclude the record affirmatively

demonstrates the court misunderstood the scope of its duty and discretion, we need not

resolve any ambiguity in the record.

However, we agree that we may not reweigh the declarations. (See Sav-On, supra,

34 Cal.4th at pp. 328, 334 [reviewing court may not reweigh evidence when class

certification issue turns on disputed inferences drawn from the evidence]; Sevidal v. Target

Corp. (2010) 189 Cal.App.4th 905, 918 [same].) After exercising its duty to carefully

review the declarations for coercion or abuse, the trial court shall determine in the first

instance whether to exercise its discretion to strike any of the declarations and shall

determine what weight to be given the declarations if the court declines to strike them. To

repeat, we express no opinion whether the evidence in the record demonstrates any of the

declarations were obtained through coercion or abuse, about the appropriate remedy if the

court finds coercion or abuse, or about the merits of plaintiff’s class certification motion.

The orders denying plaintiff’s motions to strike 99 Cents’ declarations and denying plaintiff’s motion for class certification are reversed. On remand, the trial court shall reconsider plaintiff’s motions consistent with the authorities discussed in this opinion. Plaintiff shall recover her costs on appeal.