Supreme Court of California Justia
Citation 34 Cal. 4th 319, 96 P.3d 194, 17 Cal. Rptr. 3d 906

Sav-on Drug Stores v. Super. Ct.


Filed 8/26/04

IN THE SUPREME COURT OF CALIFORNIA

SAV-ON DRUG STORES, INC.,
Petitioner,
S106718
v.
Ct.App. 2/4 B152628
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Super. Ct. No. BC227551
Respondent;
ROBERT ROCHER et al.,
Real Parties in Interest.

The question presented is whether the trial court abused its discretion in
certifying as a class action this suit for recovery of unpaid overtime compensation.
We conclude it did not and accordingly reverse the judgment of the Court of
Appeal.
Background
Plaintiffs Robert Rocher and Connie Dahlin, on behalf of themselves and
others similarly situated, brought this action against defendant Sav-on Drug
Stores, Inc., a drugstore chain. The operative second amended complaint alleges
violation of the overtime statutes (Lab. Code, § 1194 et seq.) and the unfair
competition law (Bus. & Prof. Code, § 17200 et seq.), as well as conversion, for
which plaintiffs seek damages and injunctive and declaratory relief. Underlying
1



each cause of action are factual allegations that defendant misclassified as exempt
from the overtime laws and failed to pay overtime compensation owing to
plaintiffs and similarly situated employees who worked during the relevant period
at defendant’s retail stores in California.
The Legislature has commanded that “[a]ny work in excess of eight hours
in one workday and any work in excess of 40 hours in any one workweek . . . shall
be compensated at the rate of no less than one and one-half times the regular rate
of pay for an employee.” (Lab. Code, § 510, subd. (a).) The Industrial Welfare
Commission (IWC), however, is statutorily authorized to “establish exemptions
from the requirement that an overtime rate of compensation be paid . . . for
executive, administrative, and professional employees, provided [inter alia] that
the employee is primarily engaged in duties that meet the test of the exemption,
[and] customarily and regularly exercises discretion and independent judgment in
performing those duties . . . .” (Id., § 515, subd. (a).)
During the period covered by the complaint, defendant compensated
plaintiffs as salaried managers, exempt from the overtime wage laws. Wage
orders relating to the mercantile industry promulgated by the IWC and codified at
California Code of Regulations, title 8, section 11070 provided during that same
period an exemption from the overtime requirements for “persons employed in
administrative, executive, or professional capacities.” The original IWC Wage
Order No. 7-98 defined this as one “engaged in work which is primarily
intellectual, managerial, or creative, and which requires exercise of discretion and
independent judgment.”1 The underlying merits of this litigation concern whether

1
The class period defined by the trial court’s certification order is April 3,
1996, through June 22, 2001, inclusive. During that period, three applicable IWC
wage orders, containing substantially similar executive exemptions, successively

(footnote continued on next page)
2



or not plaintiffs and those similarly situated properly were classified and paid
under this exemption.
Our present inquiry concerns the trial court’s granting of plaintiffs’ motion
for class certification. In support of their motion, plaintiffs argued that class
members (i.e., defendant’s operating managers, hereafter sometimes OM’s, and
assistant managers, hereafter sometimes AM’s) had, on the basis of their title and
job descriptions and without reference to their actual work, uniformly been
misclassified by defendant as exempt employees. In fact, defendant’s OM’s and
AM’s were nonmanagerial, nonexempt employees under relevant law. Moreover,
defendant’s store operations were “standardized.” Accordingly, the duties and
responsibilities of defendant’s OM’s and AM’s were similar in critical respects
from region to region, area to area, and store to store. Class members generally
performed nonexempt work in excess of 50 percent of the time in their workday,
and their workday routinely included work in excess of eight hours per day and/or
40 hours per week. Notwithstanding these facts, plaintiffs contended, class
members were not paid statutorily mandated overtime compensation.
In opposing certification, defendant argued that whether any individual
member of the class is exempt or nonexempt from the overtime requirements
depends on which tasks that person actually performed and the amount of time he
or she actually spent on which tasks. The actual activities performed by its OM’s
and AM’s, and the amount of time spent by each OM and AM on exempt
activities, defendant contended, varied significantly from store to store and

(footnote continued from previous page)
governed. (See IWC Wage Order No. 7-98 (eff. Jan. 1, 1998); IWC Wage Order
No. 7-2000 (eff. Oct. 1, 2000; and the current order, first adopted as IWC Wage
Order No. 7-2001 (eff. Jan. 1, 2001) and codified as amended, Cal. Code Regs.,
tit. 8, § 11070(1)(A)(1).
3



individual to individual, based on multiple factors including store location and
size, physical layout, sales volume, hours of operation, management structure and
style, experience level of managers, and number of hourly employees requiring
supervision. For this reason, defendant argued, no meaningful generalizations
about the employment circumstances of its managers could be made.
The trial court granted the certification motion, appointing plaintiffs to
represent a class defined as “all current and former salaried [OM’s] and current
and former salaried [AM’s] employed by defendant . . . in California at any time
between April 3, 1996 and June 22, 2001, inclusive.” The parties have estimated
that the class has between 600 and 1,400 members.
Defendant petitioned for writ relief. The Court of Appeal issued a writ of
mandate commanding the trial court to vacate its order granting class certification
and to enter a new and different order denying class certification. We granted
plaintiffs’ petition for review.
Discussion
We quite recently reviewed the established standards for class certification
generally. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,
1106 (Lockheed).) Code of Civil Procedure section 382 authorizes class actions
“when the question is one of a common or general interest, of many persons, or
when the parties are numerous, and it is impracticable to bring them all before the
court . . . .” The party seeking certification has the burden to establish the
existence of both an ascertainable class and a well-defined community of interest
among class members. (Lockheed, supra, at p. 1104, citing Washington Mutual
Bank v. Superior Court (2001) 24 Cal.4th 906, 913 (Washington Mutual).) The
“community of interest” requirement embodies three factors: (1) predominant
common questions of law or fact; (2) class representatives with claims or defenses
4

typical of the class; and (3) class representatives who can adequately represent the
class. (Lockheed, supra, at p. 1104.)
The certification question is “essentially a procedural one that does not ask
whether an action is legally or factually meritorious.” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 439-440 (Linder).) A trial court ruling on a certification
motion determines “whether . . . the issues which may be jointly tried, when
compared with those requiring separate adjudication, are so numerous or
substantial that the maintenance of a class action would be advantageous to the
judicial process and to the litigants.” (Collins v. Rocha (1972) 7 Cal.3d 232, 238;
accord, Lockheed, supra, 29 Cal.4th at pp. 1104-1105.) The trial court in this case
determined that plaintiffs had established by a preponderance of the evidence that
common issues predominate and ruled that a class action is “superior to alternate
means for a fair and efficient adjudication of the litigation.”
We review the trial court’s ruling for abuse of discretion. “Because trial
courts are ideally situated to evaluate the efficiencies and practicalities of
permitting group action, they are afforded great discretion in granting or denying
certification. . . . [Accordingly,] a trial court ruling supported by substantial
evidence generally will not be disturbed ‘unless (1) improper criteria were used
[citation]; or (2) erroneous legal assumptions were made [citation]’ [citation]. . . .
‘Any valid pertinent reason stated will be sufficient to uphold the order.’ ”
(Linder, supra, 23 Cal.4th at pp. 435-436; see also Lockheed, supra, 29 Cal.4th at
p. 1106.)
Defendant does not contend the trial court erred in concluding the named
plaintiffs have claims typical of the class and are adequate representatives thereof.
The issue in dispute is whether the trial court abused its discretion in concluding
that common issues predominate. For the following reasons, we conclude it did
not.
5

As the focus in a certification dispute is on what type of questions—
common or individual—are likely to arise in the action, rather than on the merits
of the case (Lockheed, supra, 29 Cal.4th at pp. 1106-1107; Linder, supra, 23
Cal.4th at pp. 439-440), in determining whether there is substantial evidence to
support a trial court’s certification order, we consider whether the theory of
recovery advanced by the proponents of certification is, as an analytical matter,
likely to prove amenable to class treatment. (See Lockheed, supra, at p. 1108;
Anthony v. General Motors Corp. (1973) 33 Cal.App.3d 699, 707.) “Reviewing
courts consistently look to the allegations of the complaint and the declarations of
attorneys representing the plaintiff class to resolve this question.” (Richmond v.
Dart Industries, Inc. (1981) 29 Cal.3d, 462, 478; see Lockheed, supra, at p. 1106.)
As noted, plaintiffs allege that defendant during the class period classified
its AM’s and OM’s as exempt from the overtime laws and failed to pay them
overtime compensation even though, pursuant to defendant’s uniform company
policies and practices, they consistently worked overtime hours and, at least partly
as a consequence of operational standardization imposed by defendant among its
various stores, in fact spent insufficient time on exempt tasks to justify their being
so classified. In moving for class certification, plaintiffs argued to the trial court
that, if permitted to proceed on this theory, they could with common proof
demonstrate, inter alia, that: (1) defendant required all class members to work
more than 40 hours per week; (2) defendant deemed each class member exempt
based on his or her job description rather than on any consideration of actual work
performed; (3) defendant paid no overtime wages to any class member;
(4) defendant categorically reclassified all of its AM’s from exempt to nonexempt
in December 1999, without changing their job descriptions or their duties;
(5) defendant kept no records of class members’ actual work activities;
(6) defendant conducted no studies of how class members spent their work time;
6

(7) defendant did not train class members on the difference between exempt and
nonexempt work; (8) defendant’s AM and OM job descriptions were uniform
throughout defendant’s operations; and (9) most of the tasks that both plaintiffs’
and defendant’s evidence indicates AM’s and OM’s actually undertook were, as a
matter of law, nonexempt. Plaintiffs contend the materials indicating defendant
treated its AM’s and OM’s uniformly and assigned them to standardized store
operations constitute substantial evidence that common issues will predominate
even if individual damage computations ultimately are required.
In opposing certification, defendant argued that determining its liability, if
any, for unpaid overtime compensation necessarily requires making individual
computations of how much time each class member actually spent working on
specific tasks. Accordingly, defendant argued, plaintiffs’ evidence of policy
uniformity and operational standardization is irrelevant and cannot amount to
substantial evidence that common issues of law and fact will predominate in the
action. In its briefing here, defendant emphasizes that any “[e]vidence, to be
‘substantial’ must be ‘of ponderable legal significance . . . reasonable in nature,
credible, and of solid value’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576) and
that an appellate court considering whether there is substantial evidence to support
a trial court ruling must consider the entire record (id. at p. 577).
Both parties are correct about the general principles guiding our inquiry.
Indeed, “we must consider whether the record contains substantial evidence to
support the trial court’s predominance finding, as a certification ruling not
supported by substantial evidence cannot stand.” (Lockheed, supra, 29 Cal.4th at
p. 1106.) But, “[w]here a certification order turns on inferences to be drawn from
the facts, the reviewing court has no authority to substitute its decision for that of
the trial court.” (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97
7

Cal.App.4th 1282, 1287; accord, Walker v. Superior Court (1991) 53 Cal.3d 257,
272.) We turn, therefore, to the record.
In moving for certification, plaintiffs presented, inter alia, defendant’s
“Assistant Manager” and “Operating Manager” job descriptions (pursuant to
which defendant treated all AM’s and OM’s as exempt from the overtime laws for
some or all of the class period),2 defendant’s form for conducting performance
reviews of “management associates,” and defendant’s memoranda detailing
scheduling, compensation and training programs for AM’s and OM’s. Plaintiffs
also presented the deposition of defendant’s designated “person most
knowledgeable,” district manager Frank Paul DeGaetano, defendant’s responses to
plaintiffs’ interrogatories, the interrogatory responses of named plaintiffs Rocher
(an OM) and Dahlin (an AM), and the declarations of Mario Gardner (an AM),
Richard Featherstone (an OM), and Benissa Clifford and Stephen Aldag (both
general managers) describing their work and defendant’s policies and procedures.
Defendant presented the declaration of Brad Adams, a human resources
manager for defendant’s Southern California Northern Area Drug Division,
describing defendant’s stores, policies, and procedures, and declarations from 51
current employees of defendant, each an AM or OM, describing their work.
Presuming in favor of the certification order, as we must, the existence of
every fact the trial court could reasonably deduce from the record (People v.
Johnson, supra, 26 Cal.3d at p. 576), we cannot say it would be irrational for a

2
Defendant concedes it “treated its OM’s and AM’s as exempt,” claiming it
did so “based on its reasonable expectation that managers in those positions would
be performing primarily managerial duties.” The record also contains defendant’s
interrogatory responses indicating it reclassified AM’s “from a salary form of
compensation to an hourly rate of pay on December 19, 1999,” with “no change in
the job description or job duties.”
8



court to conclude that, tried on plaintiffs’ theory, “questions of law or fact
common to the class predominate over the questions affecting the individual
members” (Washington Mutual, supra, 24 Cal.4th at p. 913). Rather, as the trial
court concluded, the documents, depositions, declarations, and interrogatory
responses presented by the parties comprise substantial evidence that common
issues of law and fact will predominate over individual issues if the AM’s and
OM’s overtime claims are tried as a class action.3 They are evidence thereof
because they comprise “testimony [and] writings . . . offered to prove” (Evid.
Code, § 140), and having a “tendency in reason to prove” (id., § 210), that fact.
The evidence is substantial because it is not “qualified, tentative, and
conclusionary” (Lockheed, supra, 29 Cal.4th at p. 1111) but, rather, “ ‘of
ponderable legal significance . . . reasonable in nature, credible, and of solid
value’ ” (People v. Johnson, supra, at p. 576).
The record contains substantial, if disputed, evidence that deliberate
misclassification was defendant’s policy and practice. The record also contains
substantial evidence that, owing in part to operational standardization and perhaps
contrary to what defendant expected, classification based on job descriptions alone
resulted in widespread de facto misclassification.4 Either theory is amenable to
class treatment. Unquestionably, as the Court of Appeal observed, defendant is

3
Defendant’s motion for judicial notice and/or for the court to take
additional evidence, and the request of amicus curiae Employers Group to take
judicial notice, both are denied. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7
Cal.4th 1057, 1063.)
4
As earlier noted, defendant’s interrogatory responses indicate that during
the class period it reclassified all AM’s from exempt to nonexempt with “no
change in the job description or job duties.” The court could rationally have
regarded the reclassification as common evidence respecting both defendant’s
classification policies and the AM’s actual status during the relevant period.
9



entitled to defend against plaintiffs’ complaint by attempting to demonstrate wide
variations in the types of stores and, consequently, in the types of activities and
amounts of time per workweek the OM’s and AM’s in those stores spent on
different types of activities. Nevertheless, a reasonable court crediting plaintiffs’
evidence could conclude it raises substantial issues as to both whether a
misclassification policy existed and whether, in any event, a uniform classification
policy was put into practice under the standardized conditions alleged. A
reasonable court, even allowing for individualized damage determinations, could
conclude that, to the extent plaintiffs are able to demonstrate pursuant to either
scenario that misclassification was the rule rather than the exception, a class action
would be the most efficient means of resolving class members’ overtime claims.
The record contains substantial evidence suggesting that the predominant
issue in dispute is how the various tasks in which AM’s and OM’s actually
engaged should be classified—as exempt or nonexempt. We previously have
recognized in an overtime exemption case that task classification is a mixed
question of law and fact appropriate for a court to address separately from
calculating the amount of time specific employees actually spend on specific tasks.
(Ramirez v. Yosemite Water, Inc. (1999) 20 Cal.4th 785, 803, fn. 5 (Ramirez)
[instructing trial court in salesperson overtime exemption case to “itemize the
types of activities that it considers to be sales related” to “enable an appellate court
to review whether the trial court’s legal classifications are correct”].)
On the one hand, each of the 51 declarations by the AM’s and OM’s
describing their actual work (including specific tasks) that defendant submitted in
opposing certification states that the declarant spends a majority of his or her time
on managerial tasks. Plaintiffs characterize most of that same work as
10

nonmanagerial.5 Regardless of who is correct, the fact is the tasks discussed in
both defendant’s and plaintiffs’ submissions comprise a reasonably definite and
finite list. As plaintiffs argued to the trial court, “[t]he only difference between
Defendant’s declarations and Plaintiffs’ evidence is that the parties disagree on
whether certain identical work tasks are ‘managerial’ or ‘non-managerial.’ . . .
This is an issue that can easily be resolved on a class-wide basis by assigning each
task to one side of the ‘ledger’ and makes the manageability of the case not the
daunting task Defendant has sought to portray.” The trial court, in reaching its
certification decision, expressly agreed.
Defendant, of course, does not concede the viability of plaintiffs’
misclassification theories. Defendant denies it engaged in deliberate
misclassification, claiming it “treated its OM’s and AM’s as exempt based on its
reasonable expectation that managers in those positions would be performing
primarily managerial duties.” And defendant challenges plaintiffs’ allegations

5
Plaintiffs argued in their issues statements submitted in support of the
certification motion that “[w]hether a series of tasks are exempt or non-exempt for
purposes of California overtime laws” is a common issue, referencing the “finite
list of tasks” found in defendant’s own declarations by OM’s and AM’s. For
example, plaintiffs argued, “[o]ne can prove that all class members spend a great
deal of time greeting customers, selling, ringing up sales, answering the telephone,
assisting customers, stocking shelves, merchandising, unloading and packing
deliveries, and cleaning” without individual testimony from each class member.
Plaintiffs also pointed to defendant’s interrogatory responses. There, defendant
concedes that both AM’s and OM’s “may occasionally perform” certain “types of
nonexempt tasks” including “checking out customers, stocking shelves, facing
shelves, and cleaning the store.” Defendant also lists tasks (e.g., “supervising the
unloading of trucks,” “checking the quality and quantity of warehouse and vendor
shipments,” “safeguarding company assets,” “opening or closing the store,”
“making the store safe for employees and customers,” “ordering emergency
repairs”) that defendant contends were exempt, but plaintiffs contend were
nonexempt.
11



respecting the effect of standardization in defendant’s operations, pointing out, as
the Court of Appeal observed, that its responses to plaintiffs’ interrogatories state
that the actual tasks performed by class members and the amount of time spent on
those tasks vary significantly from manager to manager and cannot be adjudicated
on a class-wide basis. But the trial court was within its discretion to credit
plaintiffs’ evidence on these points over defendant’s, and we have no authority to
substitute our own judgment for the trial court’s respecting this or any other
conflict in the evidence. (Walker v. Superior Court, supra, 53 Cal.3d at p. 272.)
A reasonable court could conclude that issues respecting the proper legal
classification of AM’s and OM’s actual activities, along with issues respecting
defendant’s policies and practices and issues respecting operational
standardization, are likely to predominate in a class proceeding over any
individualized calculations of actual overtime hours that might ultimately prove
necessary.
The trial court was not deciding—nor are we—the merits of plaintiffs’ case.
We previously have recognized, in the certification context, that common issues
may be present when a defendant’s tortious acts, as here, “allegedly are the same
with regard to each plaintiff.” (Lockheed, supra, 29 Cal.4th at p. 1107 [noting
defendant’s concession]; see Occidental Land, Inc. v. Superior Court (1976) 18
Cal.3d 355, 362 (Occidental Land, Inc.) [concerning defendant’s alleged
misrepresentations].) We need not conclude that plaintiffs’ evidence is
compelling, or even that the trial court would have abused its discretion if it had
credited defendant’s evidence instead. “[I]t is of no consequence that the trial
court believing other evidence, or drawing other reasonable inferences, might have
reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870,
874, italics omitted, citing People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)
12

Defendant asserts that the trial court failed to explain the basis for its
finding that common questions predominate, but the record is to the contrary. At
the certification hearing, the trial court examined the parties’ contentions in detail.
The court specifically noted plaintiffs’ evidence that defendant classified its AM’s
and OM’s “exempt without any exception, and rel[ied] exclusively on these titles
alone in redefining who is exempt and who is not exempt. The predominance of
the defendant’s class-wide exemption is evidenced by the fact that there is no
compliance program that’s ever existed, and no single class member has ever
received overtime compensation. The class-wide policy does not vary from store
to store, or employee to employee.” The court also noted defendant’s
“representative evidence, the declarations of 51 persons” describing the work of
each, which “all say that the declarants spend more than 50 percent of their time
on managerial activities.”
The trial court also specified the evidence it was relying upon in certifying
this action, referencing “all the moving papers,” including the parties’ statements
respecting common issues, plaintiffs’ multiple exhibits in support of the motion,
and “the testimony of one Frank Paul, last name is D-E-G-A-E-T-A-N-O. He’s
. . . defendant’s corporate representative, and the person most knowledgeable.
And also the defendant’s answers to interrogatories that have been involved.” The
relevant minute order states that “[t]he motion for class-certification is granted
based upon the grounds recited into the record by the court.” And the trial court’s
signed order expressly notes the order is based on “all admissible evidence.”
Finally, the trial court applied the proper legal criterion for deciding
whether to certify a class, stating that plaintiffs had established “by a
preponderance of the evidence that the class action proceeding is superior to
alternate means for a fair and efficient adjudication of the litigation.” (Cf.
13

Washington Mutual, supra, 24 Cal.4th at p. 914 [class treatment must “provide
substantial benefits both to the courts and the litigants”].)
Defendant does not dispute that class certification may be appropriate in an
overtime exemption case, only whether it is appropriate in this case. Defendant
suggests this class action is likely to “degenerate into a multitude of mini-trials,”
but, as noted, the evidence to the contrary is substantial. As alleged, each class
member’s claim to unpaid overtime depends on whether he or she worked for
defendant during the relevant period in a position that was misclassified either
deliberately (on a class basis) or circumstantially (again, as a consequence of
defendant’s class-wide policies and practices). That calculation of individual
damages may at some point be required does not foreclose the possibility of taking
common evidence on the misclassification questions. (Collins v. Rocha, supra, 7
Cal.3d at p. 238 [“only the issue of damages will require separate proof for each
class member” if plaintiffs prove employer misrepresented job terms and
conditions]; see, e.g., Hypolite v. Carleson (1975) 52 Cal.App.3d 566, 579-581
[need to calculate wrongfully denied benefits individually does not defeat
community of interest where class members allege claims based on the same
invalid regulation].) In any event, “a class action is not inappropriate simply
because each member of the class may at some point be required to make an
individual showing as to his or her eligibility for recovery or as to the amount of
his or her damages.” (Employment Development Dept. v. Superior Court (1981)
30 Cal.3d 256, 266.)
Defendant sweepingly asserts, without support, that the portion of
plaintiffs’ evidence that focused on defendant’s class-wide policies and practices,
rather than on “whether each class member is meeting the employer’s reasonable
expectations,” is irrelevant to the predominance issue. But defendant does not
suggest any per se bar exists to certification based partly on pattern and practice
14

evidence or similar evidence of a defendant’s class-wide behavior. California
courts and others have in a wide variety of contexts considered pattern and
practice evidence, statistical evidence, sampling evidence, expert testimony, and
other indicators of a defendant’s centralized practices in order to evaluate whether
common behavior towards similarly situated plaintiffs makes class certification
appropriate.6 Indeed, as the Court of Appeal recently recognized, the use of
statistical sampling in an overtime class action “does not dispense with proof of
damages but rather offers a different method of proof” (Bell v. Farmers Ins.
Exchange (2004) 115 Cal.App.4th 715, 750).
Defendant characterizes plaintiffs’ declarations generally as conclusory and
containing “boilerplate,” contrasting what it calls “Sav-on’s 52 detailed, fact-
specific declarations.” Such observations, however, go to the weight of the

6
See, e.g., International Brotherhood of Teamsters v. United States (1977)
431 U.S. 324, 337-340 (statistics bolstered by specific incidents “are equally
competent in proving employment discrimination”); Lockheed, supra, 29 Cal.4th
at pages 1106-1108 (“well sampling and other hydrological data” about “the
pattern and degree of contamination” could, but was insufficient to, support “a
theory that a defendant’s negligence has necessitated increased or different
monitoring for all, or nearly all, exposed individuals”); Reyes v. Board of
Supervisors
(1987) 196 Cal.App.3d 1263, 1279 (certification of class action for
wrongfully denied welfare benefits proper because “whether the County applied
an unlawful sanctioning process” to deny eligibility “can be proved by reviewing
the County’s regulations, . . . the standard practices followed in making
sanctioning decisions, as well as a sampling of representative cases”); Stephens v.
Montgomery Ward
(1987) 193 Cal.App.3d 411, 421 (certification proponent
satisfied commonality requirement with statistical data and analysis of retail
chain’s corporate structure supporting allegations respecting centralized control
over employment decisions); see also In re Simon II Litig. (E.D.N.Y. 2002) 211
F.R.D. 86, 146-151 (tobacco case listing state, high court, other federal, and
secondary authorities concluding aggregate proof is “consistent with the
defendants’ Constitutional rights and legally available to support plaintiffs’ state
law claims”).
15



evidence, a matter generally entrusted to the trial court’s discretion. And, as
noted, defendant as well as plaintiffs presented evidence respecting defendant’s
personnel policies and management structure along with evidence respecting
individual managers’ actual activities.
Defendant concedes that Mario Gardner’s declaration described his duties
as an AM in a manner that might permit certification had plaintiffs marshaled
more such declarations, but argues this single declaration does not support class
treatment. Defendant is mistaken. Evidence of even one credible witness “is
sufficient for proof of any fact.” (Evid. Code, § 411.) And “questions as to the
weight and sufficiency of the evidence, the construction to be put upon it, the
inferences to be drawn therefrom, the credibility of witnesses . . . and the
determination of [any] conflicts and inconsistency in their testimony are matters
for the trial court to resolve.” (Thompson v. City of Long Beach (1953) 41 Cal.2d
235, 246.) Moreover, as noted above, Mario Gardner’s was not the only
declaration plaintiffs presented to indicate AM’s and OM’s engaged primarily in
nonexempt activities. Indeed, on plaintiffs’ theory, even defendant’s declarations
may prove relevant on that point.
Nevertheless, defendant insists that because exempt employees are those
engaged “in work which is primarily intellectual, managerial or creative, and
which requires the exercise of discretion and independent judgment” (IWC Wage
Order No. 7-98 (eff. Jan. 1, 1998), “the central factual issues in this dispute [are]
the actual tasks performed by class members and the amount of time spent on each
of those tasks.” But even if some individualized proof of such facts ultimately is
required to parse class members’ claims, that such will predominate in the action
does not necessarily follow.
We long ago recognized “that each class member might be required
ultimately to justify an individual claim does not necessarily preclude maintenance
16

of a class action.” (Collins v. Rocha, supra, 7 Cal.3d at p. 238.) Predominance is
a comparative concept, and “the necessity for class members to individually
establish eligibility and damages does not mean individual fact questions
predominate.” (Reyes v. Board of Supervisors, supra, 196 Cal.App.3d at p. 1278;
see Lockheed, supra, 29 Cal.4th at p. 1105; Daar v. Yellow Cab Co. (1967) 67
Cal.2d 695, 707-710.) Individual issues do not render class certification
inappropriate so long as such issues may effectively be managed. (Richmond v.
Dart Industries, Inc., supra, 29 Cal.3d at p. 473; see also Occidental Land, Inc.,
supra, 18 Cal.3d at pp. 363-364; Washington Mutual, supra, 24 Cal.4th at p. 922.)
Nor is it a bar to certification that individual class members may ultimately
need to itemize their damages. We have recognized that the need for
individualized proof of damages is not per se an obstacle to class treatment
(Occidental Land, Inc., supra, 18 Cal.3d at p. 363 [homebuyers’ class action
against developer]) and “that each member of the class must prove his separate
claim to a portion of any recovery by the class is only one factor to be considered
in determining whether a class action is proper” (Vasquez v. Superior Court
(1971) 4 Cal.3d 800, 809 (Vasquez) [consumers’ class action against finance
companies]).
Accordingly, neither variation in the mix of actual work activities
undertaken during the class period by individual AM’s and OM’s, nor differences
in the total unpaid overtime compensation owed each class member, bars class
certification as a matter of law. (Vasquez, supra, 4 Cal.3d at p. 815 [“although
ultimately each class member will be required in some manner to establish his
individual damages this circumstance does not preclude the maintenance of the
suit as a class action”]; see Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 707
[“Nor is a common recovery necessary in order to establish a community of
interest”]; Los Angeles Fire & Protective League v. City of Los Angeles (1972) 23
17

Cal.App.3d 67, 74 [“differences in sub-groups as to assignments and ranks”
among firefighters “in no way detract from” common issues in overtime class
action].)
“It may be, of course, that the trial court will determine in subsequent
proceedings that some of the matters bearing on the right to recovery require
separate proof by each class member. If this should occur, the applicable rule . . .
is that the maintenance of the suit as a class action is not precluded so long as the
issues which may be jointly tried, when compared to those requiring separate
adjudication, justify the maintenance of the suit as a class action.” (Vasquez,
supra, 4 Cal.3d at p. 815; see Lockheed, supra, 29 Cal.4th at p. 1105.) And if
unanticipated or unmanageable individual issues do arise, the trial court retains the
option of decertification. (Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 144;
see, e.g., O’Connor v. Boeing North American, Inc. (C.D.Cal. 2000) 197 F.R.D.
404.)
Defendant mistakenly suggests that our decision in Ramirez, supra, 20
Cal.4th 785, bars class certification in this matter. Defendant argues that when
plaintiffs in an overtime case seek class certification, “the trial court must
determine whether the evidence shows that application of the Ramirez factors—
the actual tasks performed by each class member, the amount of time each class
member spent on those tasks, and how the class member’s practices compare to
the employer’s reasonable expectations—raises common questions that
predominate over individual issues.” Defendant both misstates and overstates the
significance of Ramirez.
Ramirez was an action for unpaid overtime brought by a bottled-water route
sales representative against his former employer. (Ramirez, supra, 20 Cal.4th at
p. 790.) We reversed the Court of Appeal’s ruling that the plaintiff was exempt
under an IWC wage order defining “outside salesperson,” largely because the
18

court had inappropriately relied on certain federal regulations, which varied from
California law, in making that determination. (Id. at p. 804.) In so doing, we
explained that a court deciding whether an employee is an outside salesperson
under the applicable state rule should inquire “into the realistic requirements of the
job.” (Id. at p. 802, italics omitted.) Specifically, we indicated, “the court should
consider . . . how the employee actually spends his or her time” and “whether the
employee’s practice diverges from the employer’s realistic expectations . . . .”
(Ibid.)7
Ramirez was not a class action and, to that extent, is not apposite. In
Ramirez, we did not even discuss certification standards, let alone change them.
Accordingly, Ramirez is no authority for constraining trial courts’ “great
discretion in granting or denying certification” (Linder, supra, 23 Cal.4th at
p. 435) or, more particularly as defendant asserts, for applying a particular set of
“factors” whenever plaintiffs in an overtime case seek class certification. The
certification of a class is a discretionary decision that demands the weighing of
many relevant considerations. (Id. at pp. 435-436.) And even as an overtime
exemption case, Ramirez is not particularly apposite. Our analysis was tied to the
“logic inherent in the IWC’s quantitative definition of outside salesperson”
(Ramirez, supra, 20 Cal.4th at p. 802) and would not necessarily apply, or apply
with the same force, in every exemption context. We expressed in Ramirez, for
example, a concern that under a pure “actual activity” test, an employee assigned
to sell might “evade a valid [outside salesperson] exemption” by “his own

7
It is to these considerations, apparently, that defendant means to refer when
invoking what it calls “the Ramirez factors.”
19



substandard performance” in selling. (Ibid.) No one suggests a similar concern
applies here.
While we recognized that a trial court may have to resolve significant
factual discrepancies when applying the salesperson exemption in a particular case
(Ramirez, supra, 20 Cal.4th at p. 803), we did not in Ramirez purport to limit the
types of evidence or methods of proof that parties to overtime disputes may bring
to bear. Listing considerations relevant to the state test for “outside salesperson,”
we simply counseled trial courts to avoid sole reliance either on “an employer’s
job description” or on “the actual average hours the employee spent on sales
activity” (id. at p. 802).
Presence in a particular overtime class action of the considerations
reviewed in Ramirez does not necessarily preclude class certification. Any dispute
over “how the employee actually spends his or her time” (Ramirez, supra, 20
Cal.4th at p. 802), of course, has the potential to generate individual issues. But
considerations such as “the employer’s realistic expectations” (ibid.) and “the
actual overall requirements of the job” (ibid.) are likely to prove susceptible of
common proof. Defendant’s “realistic expectations,” in particular, may become
relevant in this case, and a reasonable court could conclude these are susceptible to
common proof.8

8
Defendant claims it “treated its OM’s and AM’s as exempt based on its
reasonable expectation that managers in those positions would be performing
primarily managerial duties.” Defendant’s actual expectations (absent deliberate
misclassification) presumably are indicated in its job descriptions and training
materials, and as noted the record contains substantial evidence that whether these
were realistic—in light of defendant’s policies and practices, and of operational
standardization—may be addressed with common evidence.
20



Defendant would have us extend Ramirez to shield employers from an
action challenging a type of illegality that our decision in that case was actually
designed to prevent. One of our core concerns in Ramirez was that “if hours
worked on sales were determined through the employer’s job description, . . . the
employer could make an employee exempt from the overtime laws solely by
fashioning an idealized job description that had little basis in reality.” (Ramirez,
supra, 20 Cal.4th at p. 802.) Here, defendant allegedly promulgated exempt job
descriptions, but implemented policies and practices that failed to afford its AM’s
and OM’s true managerial discretion, and standardized store operations so that
managers were obliged to spend over 50 percent of their time doing the same tasks
as their subordinates.9 Defendant suggests we bar class certification of an action
based on such allegations, on the somewhat ironic (and only half-stated) surmise
that some individual AM’s and OM’s may, in fact, have labored below the 50
percent mark on nonexempt tasks notwithstanding defendant’s alleged class-wide
policies and practices either designed or destined to assure the contrary. We
decline the invitation. Contrary to defendant’s implication, our observation in
Ramirez that whether the employee is an outside salesperson depends “first and
foremost, [on] how the employee actually spends his or her time” (Ramirez, supra,

9
Federal authority indicates that either allegation, if proved, would be
sufficient to render the affected workers nonexempt and thus eligible for overtime.
(Cf. Donovan v. Burger King Corp. (2d Cir. 1982) 675 F.2d 516, 518-519
[affirming Fair Labor Standards Act (FLSA) overtime award where assistant
managers “ ‘spent at least half of their time doing the same work as the hourly
employees’ ” as “a direct consequence of a deliberate corporate policy at the
regional level which dictated ‘ideal’ ratios of hourly labor to production”];
Donovan v. Burger King Corp. (1st Cir. 1982) 672 F.2d 221, 228 [worker “whose
primary duty is management may still fail to qualify” for FLSA “executive”
exemption “if his managerial status coexists with the performance of a significant
amount of menial work, as in the case of a working supervisor or ‘strawboss’ ”].)
21



at p. 802) did not create or imply a requirement that courts assess an employer’s
affirmative exemption defense against every class member’s claim before
certifying an overtime class action.
Moreover, defendant’s proposed reading of Ramirez would require,
essentially, that a certification proponent in an overtime class action prove the
entire class was nonexempt whenever a defendant raises the affirmative defense of
exemption. But in Ramirez itself we recognized that “the assertion of an
exemption from the overtime laws is considered to be an affirmative defense, and
therefore the employer bears the burden of proving the employee’s exemption.”
(Ramirez, supra, 20 Cal.4th at pp. 794-795; accord, Nordquist v. McGraw-Hill
Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [an “employer bears the burden
of proving an employee is exempt”].) Were we to require as a prerequisite to
certification that plaintiffs demonstrate defendant’s classification policy was, as
the Court of Appeal put it, either “right as to all members of the class or wrong as
to all members of the class,” we effectively would reverse that burden. Ramirez is
no authority for such a requirement, nor does the logic of predominance require it.
In sum, defendant’s reliance on Ramirez is misplaced. Perhaps realizing
this, the Court of Appeal did not rely on that case or even cite it. But the Court of
Appeal went astray in other ways. Although its summary of the evidence
submitted on certification was generally accurate, the Court of Appeal erred to the
extent it engaged in any reweighing of that evidence.
After reviewing defendant’s evidence respecting store variations, the Court
of Appeal noted plaintiffs’ evidence of defendant’s uniform policies and
standardization, plaintiffs’ declarations from AM’s and OM’s relating their
experience of what defendant’s employees in those positions actually did, and the
interrogatory evidence submitted both by defendant and plaintiffs also respecting
actual tasks performed by class members. Thereafter, the court opined that
22

plaintiffs’ declarations were “not determinative” and “not conclusive” because
defendant’s evidence, in particular the declaration of defendant’s human resources
manager Brad Adams, “showed the work of all the AM’s and OM’s is not uniform
or identical.” But a reviewing court is not authorized to overturn a certification
order merely because it finds the record evidence of predominance less than
determinative or conclusive. The relevant question on review is whether such
evidence is substantial.
The Court of Appeal also erred to the extent it stated or implied that the
community of interest requirement for certification mandates that class members’
claims be uniform or identical. Plaintiffs’ theory does not depend on class
members having identical claims, nor does the law of class certification require
such. (Vasquez, supra, 4 Cal.3d at p. 809 [“a community of interest does not
depend upon an identical recovery”].)
Finally, the Court of Appeal erroneously cited City of San Jose v. Superior
Court (1974) 12 Cal.3d 447 (San Jose) in suggesting trial courts must “deny class
certification when each member’s right to recover depends on facts individual to
the member’s case.” In San Jose, the trial court had certified a class of property
owners pressing claims against a municipal airport. We reversed, remarking at
one point that the general rule “that a class action cannot be maintained where
each member’s right to recover depends on facts peculiar to his case . . . remains
viable in this state.” (Id. at p. 459.) But reading this categorical extract out of
context would misstate the established legal standard for commonality, which, as
previously noted, is comparative.10 Our holding in San Jose was, in fact,

10
The relevant comparison lies between the costs and benefits of adjudicating
plaintiffs’ claims in a class action and the costs and benefits of proceeding by
numerous separate actions—not between the complexity of a class suit that must

(footnote continued on next page)
23



expressly comparative (see San Jose, supra, at p. 460 [comparing “the issues
which may be jointly tried” with “those requiring separate adjudication”]), and we
consistently have adhered to that approach (see, e.g., Washington Mutual, supra,
24 Cal.4th at pp. 913-914, quoting San Jose, supra, 12 Cal.3d at p. 460).
Courts seeking to preserve efficiency and other benefits of class actions
routinely fashion methods to manage individual questions.11 For decades “[t]his
court has urged trial courts to be procedurally innovative” (San Jose, supra, 12
Cal.3d at p. 453) in managing class actions, and “the trial court has an obligation
to consider the use of . . . innovative procedural tools proposed by a party to
certify a manageable class” (Osborne v. Subaru of America, Inc. (1988) 198
Cal.App.3d 646, 653, citing Occidental Land, Inc., supra, 18 Cal.3d at p. 360,
fn. 3; Linder, supra, 23 Cal.4th at p. 440 [in class actions, “trial courts must be
accorded the flexibility ‘to adopt innovative procedures’ ”]).12 Such devices

(footnote continued from previous page)
accommodate some individualized inquiries and the absence of any remedial
proceeding whatsoever. (Vasquez, supra, 4 Cal.3d at pp. 815-816; Reese v. Wal-
Mart Stores, Inc.
(1999) 73 Cal.App.4th 1225, 1236-1237.)
11
See, e.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965,
1010, footnote 28 (common fund); Rosack v. Volvo of America Corp. (1982) 131
Cal.App.3d 741, 761-763 (bifurcation, subclasses); Gonzales v. Jones (1981) 116
Cal.App.3d 978, 985-986 (administrative processing); O’Connor v. Boeing North
American, Inc.
(C.D.Cal. 1998) 184 F.R.D. 311, 327 and Rodriguez v. McKinney
(E.D.Pa. 1994) 156 F.R.D. 118, 119 (questionnaire); Ungar v. Dunkin’ Donuts of
America, Inc.
(E.D.Pa. 1975) 68 F.R.D. 65, 140 (single-issue hearings).
12
Courts on occasion have conducted separate judicial or administrative
miniproceedings on individualized issues. (See, e.g., Lamb v. United Sec. Life Co.
(S.D.Iowa 1972) 59 F.R.D. 25, 33.) Individualized hearings may sometimes
efficiently be assigned to special masters. (See, e.g., Day v. NLO (S.D.Ohio 1994)
851 F.Supp. 869, 874-876.) Perhaps, as plaintiffs suggest, in this case each class
member’s particularized overtime “damages sought may be calculated according
to a standard formula” (Occidental Land, Inc., supra, 18 Cal.3d at p. 364) based

(footnote continued on next page)
24



permit defendants to “present their opposition, and to raise certain affirmative
defenses.” (Day v. NLO, supra, 851 F.Supp. at p. 876.)
Considerations of sound public policy buttress our conclusion. Labor Code
section 1194 confirms “a clear public policy . . . that is specifically directed at the
enforcement of California’s minimum wage and overtime laws for the benefit of
workers.” (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1429-1430.)
As defendant’s own authority reminds us, California’s overtime laws are remedial
and are to be construed so as to promote employee protection. (Ramirez, supra,
20 Cal.4th at p. 794.) And, as we have recognized, “this state has a public policy
which encourages the use of the class action device.” (Richmond v. Dart
Industries, Inc., supra, 29 Cal.3d at p. 473.) “ ‘By establishing a technique
whereby the claims of many individuals can be resolved at the same time, the class
suit both eliminates the possibility of repetitious litigation and provides small
claimants with a method of obtaining redress for claims which would otherwise be
too small to warrant individual litigation.’ ” (Id. at p. 469.)
Many of the issues likely to be most vigorously contested in this dispute, as
noted, are common ones. Absent class treatment, each individual plaintiff would
present in separate, duplicative proceedings the same or essentially the same
arguments and evidence, including expert testimony. The result would be a
multiplicity of trials conducted at enormous expense to both the judicial system
and the litigants. “It would be neither efficient nor fair to anyone, including

(footnote continued from previous page)
on survey results (see, e.g., MacManus v. A. E. Realty Partners (1988) 195
Cal.App.3d 1106, 1117; Braun v. Wal-Mart, Inc. (Minn.Dist.Ct. 2003) 2003 WL
22990114). It is not our role at this stage either to devise or to dictate the methods
by which a trial court conducting a particular class action may choose to manage
it. (See Rosack v. Volvo of America Corp., supra, 131 Cal.App.3d at p. 761.)
25



defendants, to force multiple trials to hear the same evidence and decide the same
issues.” (Boggs v. Divested Atomic Corp. (S.D.Ohio 1991) 141 F.R.D. 58, 67.)13
Disposition
For the foregoing reasons, we reverse the judgment of the Court of Appeal.
WERDEGAR, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.

13
“ ‘If the factual circumstances underlying class members’ claims differ, or
if class members disagree as to the proper theory of liability, the trial judge,
through use of techniques like subclassing or [other judicial] intervention, may
incorporate the class differences into the litigative process, and give all class
members their due in deciding what is the proper outcome of the litigation.’ ”
(Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 473, quoting
Developments—Class Actions (1976) 89 Harv. L.Rev. 1318, 1490-1492.)
26




CONCURRING OPINION BY BROWN, J.

I agree that the trial court did not abuse its discretion in concluding that the
common issues predominate and in certifying this action for recovery of unpaid
overtime as a class action. Because I find the majority’s reasoning less than clear,
however, I write separately to explain my own reasons for reaching this
conclusion.
“Because trial courts are ideally situated to evaluate the efficiencies and
practicalities of permitting group action, they are afforded great discretion in
granting or denying certification.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th
429, 435.) As such, we generally will not disturb a trial court’s ruling on class
certification unless: (1) the ruling is not supported by substantial evidence; (2)
“improper criteria were used”; or (3) “erroneous legal assumptions were made.”
(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 (Richmond).)
To obtain class certification, a party must establish, among other things, a
“well-defined community of interest among the class members.” (Richmond,
supra, 29 Cal.3d at p. 470.) A well-defined community of interest exists if
common questions of law and fact predominate. (Ibid.) Common issues may
predominate even if “each member of the class must prove his separate claim to a
portion of any recovery by the class . . . .” (Vasquez v. Superior Court (1971) 4
Cal.3d 800, 809 (Vasquez).) But “each member must not be required to
1



individually litigate numerous and substantial questions to determine his right to
recover following the class judgment; and the issues which may be jointly tried,
when compared with those requiring separate adjudication[,] must be sufficiently
numerous and substantial to make the class action advantageous to the judicial
process and to the litigants.” (City of San Jose v. Superior Court (1974) 12 Cal.3d
447, 460.)
“In order to determine whether common questions of [law and] fact
predominate the trial court must examine the issues framed by the pleadings and
the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad
Home Corp. (2001) 89 Cal.App.4th 908, 916.) I therefore begin my analysis by
determining the issues and reviewing the law.
In their complaint, plaintiffs Robert Rocher and Connie Dahlin alleged that
defendant Sav-on Drug Stores, Inc., misclassified its assistant managers (AM’s)
and operating managers (OM’s) as exempt from the overtime wage laws. As a
result, defendant improperly compensated plaintiffs and other similarly situated
AM’s and OM’s as salaried managers and failed to pay them overtime
compensation. Plaintiffs sought to certify as a class “all current and former
salaried [OM’s] and current and former salaried [AM’s] employed by
defendant . . . in California at any time between April 3, 1996 and June 22, 2001,
inclusive.” Thus, the primary issue framed by the pleadings is whether
defendant’s AM’s and OM’s are exempt from the statutory overtime provisions.
The question of whether defendant’s AM’s and OM’s are exempt
employees “is, like other questions involving the application of legal categories, a
mixed question of law and fact.” (Ramirez v. Yosemite Water Co. (1999) 20
Cal.4th 785, 794 (Ramirez).) In determining whether an employee is exempt, the
trial court must inquire “into the realistic requirements of the job. In so doing, the
court should consider, first and foremost, how the employee actually spends his or
2

her time. But the trial court should also consider whether the employee’s practice
diverges from the employer’s realistic expectations, whether there was any
concrete expression of employer displeasure over an employee’s substandard
performance, and whether these expressions were themselves realistic given the
actual overall requirements of the job.” (Id. at p. 802.) “[E]xemptions from
statutory mandatory overtime provisions are narrowly construed.” (Id. at p. 794.)
“Moreover, the assertion of an exemption from the overtime laws is considered to
be an affirmative defense, and therefore the employer bears the burden of proving
the employee’s exemption.” (Id. at pp. 794-795.)
With this framework in mind, I now turn to the question presented on
appeal: whether there is substantial evidence to support the trial court’s finding
that the common issues of law and fact predominate. After carefully reviewing the
evidence in the record in light of the relevant law, I conclude that there is
substantial evidence to support the trial court’s finding.
As an initial matter, the issue of whether defendant intentionally
misclassified its managers as exempt employees is an issue common to both the
AM and OM classes. This issue is not, by itself, sufficient to support the trial
court’s finding that the common issues predominate, because plaintiffs would still
have to prove both liability and damages subsequent to the class judgment. (See
City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 463 [“Only in an
extraordinary situation would a class action be justified where, subsequent to the
class judgment, the members would be required to individually prove not only
damages but also liability”].) But the existence of this common issue certainly
supports the trial court’s finding.
A review of the record then provides the additional evidence needed to
substantiate the trial court’s finding. With respect to the AM class, the
declarations from individual AM’s and OM’s submitted by plaintiffs constitute
3

substantial evidence that the common issues predominate. According to these
declarants, defendant consistently required AM’s to work over 40 hours a week.
A former general manager and OM further averred that, based on their years of
experience at different stores owned and operated by defendant, “[t]he type of
work performed by [AM’s] does not vary by store. Each Sav-on store was and is
operated in the same manner, and require[s] the same essential work, as one might
expect in a chain of retail stores. Therefore, the actual work performed by [AM’s]
on a daily basis was virtually identical in Sav-on stores, and remains so.” These
declarations provide substantial evidence that the realistic requirements of the AM
job are identical for all AM’s and that AM’s, on average, spend the same amount
of time on the same types of tasks. Defendant’s subsequent and independent
decision to reclassify all AM’s as nonexempt employees entitled to overtime
compensation bolsters this conclusion. Accordingly, the trial court did not abuse
its discretion in finding that the common issues predominate with respect to the
AM class.
The same reasoning does not, however, apply to the OM class. While
plaintiffs submitted multiple declarations attesting to the work and duties of AM’s,
they submitted no declarations attesting to the work and duties of OM’s. Indeed,
the only evidence in the record demonstrating that all OM’s spend the same
amount of time performing the same types of tasks comes from the special
interrogatory responses of Rocher. But these statements are not sufficient to
support the trial court’s findings as to the OM class. Rocher merely states that
he—and no other OM—spent over 50 percent of his time on nonexempt activities.
And although Rocher asserts that “[d]efendant has an expressed policy and
practice of requiring [OM’s] to . . . spend a majority of their time performing
nonexempt tasks,” he provides no foundation or evidentiary support for this
assertion. As such, his interrogatory responses are too qualified and conclusory to
4

support the trial court’s finding that plaintiffs will be able to establish defendant’s
liability for overtime compensation to the OM’s by common evidence. (See
Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1111 (plur. opn.
of Werdegar, J.) [holding that the evidence is “too qualified, tentative and
conclusionary to constitute substantial evidence” in support of class certification];
see also Lockheed Martin, at p. 1114 (conc. opn. of Brown, J.).)
Nonetheless, a careful review of the record reveals substantial evidence to
support the trial court’s finding with respect to the OM class. In Ramirez, we
suggested that the classification of tasks as exempt or nonexempt may be
susceptible to common proof. (See Ramirez, supra, 20 Cal.4th at p. 803, fn. 5.)
This appears to be especially true in this case where, as demonstrated by
defendant’s own evidence, the OM’s perform a finite number of tasks on a regular
basis. The record further indicates that plaintiffs and defendant disagree over the
classification of many of the tasks regularly performed by OM’s.1 Given the
number and significance of the tasks in dispute, the trial court could reasonably
conclude that the proper classification of these tasks, when combined with the
classifications agreed upon by the parties, will largely resolve the issue of whether
all OM’s should be classified as exempt or nonexempt employees.2 Finally, many
of the variables that, according to defendant, render the OM’s inappropriate for
class treatment—like store type, store size, and the number of store employees—

1
Defining the precise contours of their disagreement is somewhat difficult
due to the vagueness of the parties’ descriptions of the tasks regularly performed
by OM’s. But, at a minimum, the parties appear to disagree over whether the
following tasks should be classified as exempt or nonexempt: merchandising, the
unloading/movement of inventory, customer service, cash handling, finance-
related activities and the opening/closing of the store.
2
The same reasoning applies to the AM class as well.
5



may form the basis for appropriate subclasses. The trial court could reasonably
conclude that the creation of these subclasses would sufficiently reduce the need
for individual litigation as to each member of the class. (See Vasquez, supra, 4
Cal.3d at p. 821 [noting that the creation of subclasses may promote the efficiency
of a class action].) Accordingly, I find that the trial court did not abuse its
discretion in certifying the class of AM’s and OM’s and join the majority in
reversing the judgment of the Court of Appeal.
BROWN, J.
6

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Sav-on Drug Stores v. Los Angeles Superior Court
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 97 Cal.App.4th 1070
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S106718
Date Filed: August 26, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Irvin S. Feffer

__________________________________________________________________________________

Attorneys for Appellant:

Akin Gump Strauss Hauer & Feld, W. Randolph Teslik, Joel M. Cohn, William A. Norris, Rex S. Heinke,
L. Rachel Helyar and Sandra M. Lee for Petitioner.

Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Petitioner.

Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Kelly L. Hensley and Douglas R. Hart for
California Retailers Association and National Retail Federation as Amici Curiae on behalf of Petitioner.

Law Offices of Steven Drapkin and Steven Drapkin for Employers Group as Amicus Curiae on behalf of
Petitioner.

Seyfarth Shaw and Steven B. Katz for Costco Wholesale Corp., Earl Scheib, Inc., Staples, Inc., and Tuneup
Masters, Inc., as Amici Curiae on behalf of Petitioner.

Paul, Hastings, Janofsky & Walker, Paul Grossman and Patricia M. Berry for California Employment Law
Council as Amicus Curiae on behalf of Petitioner.

Fred J. Hiestand for Civil Justice Association of California as Amicus Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

1


PAGE 2 - COUNSEL CONTINUED - S106718

Attorneys for Real Parties in Interest:

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan; Righetti Wynne, Matthew Righetti, Edward J.
Wynne, John J. Glugoski, J.E.B. Pickett; Daniels, Fine, Israel & Schonbuch, Paul R. Fine, Scott A. Brooks,
Craig S. Momita; Kumetz & Glick, Fred J. Kumetz, Stephen Glick; Law Offices of Ian Herzog, Ian Herzog
and Evan D. Marshall for Real Parties in Interest.

Brad Seligman; Saperstein, Goldstein, Demchak & Baller, Goldstein, Demchak, Baller, Borgen &
Dardarian, David Borgen, Laura L. Ho, Joshua Konecky and Darci E. Burrell for The Impact Fund,
California Rural Legal Assistance Foundation, The Legal Aid Society-Employment Law Center, Mexican
American Legal Defense and Educational Fund, Asian Law Caucus, Asian Pacific American Legal Center
of Southern California, La Raza Centro Legal, Inc., Women's Employment Rights Clinic of Golden Gate
University School of Law, Bet Tzedek Legal Services, East San Jose Community Law Center, Professor
Gary Blasi, University of California, Los Angels School of Law and Professor Joseph Grodin, University
of California, Hastings College of Law as Amici Curiae on behalf of Real Parties in Interest.

Jeffery K. Winikow; Van Bourg, Weinberg, Roger & Rosenfeld, Ellyn Moscowitz, Sandra Rae Benson;
Spiro, Moss, Barness, Harrison & Barge, Dennis F. Moss, Steven M. Harrison, Ira Spiro and Rene L. Barge
for California Employment Lawyers Association, California Teamsters Public Affairs Council, Los
Angeles/Orange County Building and Construction Trades Council, AFL-CIO, Alameda County Building
and Construction Trades Council, AFL-CIO and Contra Costa County Building and Construction Trades
Council, AFL-CIO as Amici Curiae on behalf of Real Parties in Interest.


2



Counsel who argued in Supreme Court (not intended for publication with opinion):

Rex S. Heinke
Akin Gump Strauss Hauer & Feld
2029 Century Park East, Suite 2400
Los Angeles, CA 90067
(310) 229-1000

Brad S. Seligman
The Impact Fund
125 University Avenue
Berkely, CA 94710-1616
(510) 845-3473

3


The Court affirmed a trial courts class certification of a class of Sav-on employees misclassified as exempt from California's overtime wage law.

Opinion Information
Date:Citation:Docket Number:
Thu, 08/26/200434 Cal. 4th 319, 96 P.3d 194, 17 Cal. Rptr. 3d 906S106718

Parties
1Rocher, Robert (Real Party in Interest)
Represented by Paul Fine
Daniels Fine et al LLP
1801 Century Park E 9th Fl
Los Angeles, CA

2Rocher, Robert (Real Party in Interest)
Represented by Matthew Righetti
Righetti * Wynne, P.C.
456 Montgomery St., Suite 1400
San Francisco, CA

3Rocher, Robert (Real Party in Interest)
Represented by Scott Ashford Brooks
Daniels Fine Israel et al
1801 Century Park E 9FL
Los Angeles, CA

4Rocher, Robert (Real Party in Interest)
Represented by Ian Herzog
Law Offices Of Ian Herzog
233 Wilshire Blvd #550
Santa Monica, CA

5Rocher, Robert (Real Party in Interest)
Represented by Fred J. Kumetz
Kumetz & Glick
3580 Wilshire Blvd., Suite 1260
Los Angeles, CA

6Rocher, Robert (Real Party in Interest)
Represented by Dennis P. Riordan
Attorney At Law
523 Octavia Street
San Francisco, CA

7Sav-On Drug Stores, Inc. (Petitioner)
Akin, Gump, Strauss, Hauer & Field LLP
1333 New Hampshire Avenue, N.W.
Washington, DC 20036

Represented by William A. Norris
Akin, Gump et al
2029 Century Park East, 24th Fl.
Los Angeles, CA

8Superior Court Of Los Angeles County (Respondent)
9Civil Justice Association Of California (Amicus curiae)
Represented by Fred James Hiestand
Attorney At Law
1121 L St #404
Sacramento, CA

10Employers Group (Amicus curiae)
Represented by Steven G. Drapkin
Law Offices
11377 W Olympic Blvd #900
Los Angeles, CA

11Pacific Legal Foundation (Amicus curiae)
Represented by Deborah Joyce Lafetra
Pacific Legal Foundation
10360 Old Placerville #100
Sacramento, CA

12California Retailers Association (Amicus curiae)
Represented by Douglas R. Hart
Sheppard, Mullin, Richter & Hampton
333 S Hope St 48FL
Los Angeles, CA

13National Retail Federation (Amicus curiae)
14California Employment Law Council (Amicus curiae)
Represented by Patricia Maria Berry
Paul, Hastings et al.
515 S Flower St 25FL
Los Angeles, CA

15Impact Fund (Amicus curiae)
Represented by Joshua Geoffrey Konecky
Goldstein, Demchak et al
300 Lakeside Dr #1000
Oakland, CA

16Impact Fund (Amicus curiae)
Represented by Brad S. Seligman
The Impact Fund
125 University Ave
Berkeley, CA

17California Employment Lawyers Association (Amicus curiae)
Represented by Dennis F. Moss
Spiro, Moss, Barness & Harrison LLP
11377 W Olympic Blvd #1000
Los Angeles, CA

18California Employment Lawyers Association (Amicus curiae)
Represented by Ellyn Lee Moscowitz
Van Bourg, Weinberg, et al
180 Grand Ave #1400
Oakland, CA

19California Employment Lawyers Association (Amicus curiae)
Represented by Jeffrey Keith Winikow
Attorney at Law
1801 Century Park E #1520
Los Angeles, CA

20Costco Wholesale (Amicus curiae)
Represented by Steven B. Katz
Seyfarth Shaw
2029 Century Park E #3300
Los Angeles, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Disposition
Aug 26 2004Opinion: Reversed

Dockets
May 14 2002Petition for review filed
  by counsel for RPIs
May 29 2002Received Court of Appeal record
  2 doghouses [sent o/n]
Jun 4 2002Answer to petition for review filed
  petitioner Sav-On Drug Stores, Inc. [Rule 40K]
Jun 28 2002Time extended to grant or deny review
  to and including 8/12/2002
Jul 17 2002Petition for Review Granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ. Brown, J., was absent and did not participate.
Aug 2 2002Certification of interested entities or persons filed
  by petnr Sav-On
Aug 7 2002Filed:
  "Request for Publication Pending Review" received by non-party Employers Group
Aug 9 2002Request for extension of time filed
  counsel for RPI (Robert Rocher) requests extension of time to November 14, 2002 to file the opening brief on the merits.
Aug 30 2002Extension of time granted
  to 9-19-02 for RPIs to file the opening brief on the merits. "The court will entertain a request for a further extension of time only if accompanied by a substantial showing of good cause"
Sep 9 2002Request for extension of time filed
  by Real Parties in Interest for a final extension of time to 10/7/2002, to file the Opening Brief/Merits. [ Order prepared -- extension granted to 10/7/2002. ]
Sep 11 2002Extension of time granted
  Real Parties in Interest time to serve and file the Opening Brief on the Merits is extended to and including October 7, 2002.
Sep 17 2002Filed document entitled:
  supplement to publication request by the Employers Group
Oct 7 2002Opening brief on the merits filed
  by RPI
Oct 18 2002Request for extension of time filed
  for petnr to file the answer brief on the merits, to 12/6/02.
Oct 23 2002Extension of time granted
  to 12-6-02 for petnr to serve & file the answer brief on the merits.
Dec 6 2002Answer brief on the merits filed
  petitioner Sav-On Drug Stores, Inc.
Dec 19 2002Request for extension of time filed
  counsel for RPI (R. Rocher, et al.) requests extension to January 24, 2003 to file the reply brief.
Dec 23 2002Extension of time granted
  Real Party in Interest time to serve and file the reply brief is extended to and including January 24, 2003.
Jan 21 2003Filed letter from:
  offices of Daniels Fine et al stating that they, along with firms of Kumetz & Glick, Ian Herzog and Righetti-Wynne, represent RPIs Robert Rocher, Connie Dahlen and Mario Gardner.
Jan 22 2003Reply brief filed (case fully briefed)
  by RPIs
Jan 24 2003Received:
  2nd. Reply Brief/Merits for Real Parties
Jan 27 2003Filed:
  Letter from Righetti-Wynne law firm (counsel for RPIs) re "2nd" reply brief submitted by other RPI counsel.
Jan 30 2003Filed letter from:
  Daniels, Fine et al (for RPIs) responding to letter from Righetti-Wynne, dated 1/27.
Feb 20 2003Request for extension of time filed
  by Civil Justice Association of Calif. for filing of an A/C application & brief; to 3-17-03
Feb 20 2003Received application to file amicus curiae brief; with brief
  by the Employers Group in support of petnr.
Feb 20 2003Received:
  Request for Judicial Notice by A/C applicant the Employers Group.
Feb 20 2003Received application to file amicus curiae brief; with brief
  by Pacific Legal Foundation in support of petnr.
Feb 21 2003Received application to file amicus curiae brief; with brief
  amici Costco Wholesale Corp, Earl Scheib, Inc, Staples, Inc. and Tuneup Masters, Inc. [in support of petitioner]
Feb 21 2003Received application to file amicus curiae brief; with brief
  by the Impact Fund et al in support of RPI
Feb 24 2003Received application to file amicus curiae brief; with brief
  by California Employment Council in support pf petnr Sav-On. (timely per CRC 40k)
Feb 24 2003Received application to file amicus curiae brief; with brief
  by California Employment Lawyers Association in support of RPI. (timely per CRC 40k)
Feb 24 2003Received application to file amicus curiae brief; with brief
  by California Retailers Association and National Retail Federation in support of Petnr. (timely per CRC 40k)
Mar 3 2003Note:
  the Court has granted permission for the filing of the amicus briefs and the request for extension of time. Orders are being prepared.
Mar 5 2003Permission to file amicus curiae brief granted
  by the Employers Group in support of petnr. Answers may be filed W/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  the Employers Group in support of patnr.
Mar 5 2003Permission to file amicus curiae brief granted
  Pacific Legal Foundation in support of petnr. Answers may be filed w/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  Pacific Legal Foundation in support of petnr.
Mar 5 2003Permission to file amicus curiae brief granted
  by Calif. Retailers Association and National Retail Federation in support of petnr. Answers may be filed w/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  Calif. Retailers Assn. and Nat. Retail Federation in support of petnr.
Mar 5 2003Permission to file amicus curiae brief granted
  by Calif. Employment Council in support of petnr. Answers may be filed w/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  Calif. Employment Council in support of petnr.
Mar 5 2003Permission to file amicus curiae brief granted
  by Costco Wholesale Corp., et al in support of petnr. Answers may be filed w/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  Costco Wholesale Corp. et al in support of petnr.
Mar 5 2003Permission to file amicus curiae brief granted
  by the Impact Fund et al. in support of RPI. Answers may be filed w/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  the Impact Fund et al. in support of RPI.
Mar 5 2003Permission to file amicus curiae brief granted
  by Calif. Employment Lawyers Association et al. in support of RPI. Answers may be filed w/in 20 days.
Mar 5 2003Amicus Curiae Brief filed by:
  Calif. Employment Lawyers Assn. et al. in support of RPI.
Mar 5 2003Extension of time granted
  for Civil Justice Association of Calif. to serve & file its A/C brief in support of petnr; to 3-17-03. No further extensions of time will be granted.
Mar 19 2003Received application to file amicus curiae brief; with brief
  from Civil Justice Association of Calif. (40k)
Mar 25 2003Response to amicus curiae brief filed
  combined response to ac briefs>>real parties Robert Rocher, etal
Mar 25 2003Request for judicial notice filed (in non-AA proceeding)
  petitioner Sav-on Drug Stores, Inc.
Mar 25 2003Response to amicus curiae brief filed
  to ac brief of Calif Employment Lawyers Assn, etal >>petitioner Sav-On Drug Stores, Inc.
Mar 25 2003Response to amicus curiae brief filed
  to ac brief of Impact Fund, etal>>petitioner Sav-On Drug Stores, Inc.
Mar 26 2003Permission to file amicus curiae brief granted
  by Civil Justice Association of California in support of petitioner. Answers may be filed w/in 20 days.
Mar 26 2003Amicus Curiae Brief filed by:
  Civil Justice Association of California in support of petnr.
Mar 27 2003Filed:
  RPIs' opposition to petnr's motion for judicial notice.
Mar 28 2003Filed:
  "Parties' Stipulated Request to File a Supplemental Brief"
Apr 23 2003Order filed
  The parties' stipulated request to file supplemental briefs is granted. Each party may file a supplemental brief, not exceeding 2,800 words, addressing the impact, if any, of the decision in Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, by May 23, 2003. The request of plaintiffs in Gardner v. American Stores Company (Los Angeles Super. Ct. No. BC227720) to file a reply brief is denied. The court shall file the proposed brief as a brief amicus curiae. The request of amicus curiae the Employers Group to order the Court of Appeal's opinion published is denied. (See Cal. Rules of Court, rule 976(d).)
Apr 23 2003Amicus Curiae Brief filed by:
  "plaintiffs in Gardner v. American Stores Co." per order of court filed 4-23-04 (this brief was originally submitted as a Reply Brief on 1-24-03)
May 23 2003Supplemental brief filed
  by RPI
May 27 2003Filed:
  supplemental brief>>petitioner Sav-on Drug Stroes, Inc. [rule 40k]
Apr 28 2004Case ordered on calendar
  6-1-04, 2pm, L.A.
May 20 2004Filed:
  RPIs' supp brief (CRC 29.1(d))
Jun 1 2004Cause argued and submitted
 
Aug 26 2004Opinion filed: Judgment reversed
  Majority opinion by Werdegar, J. ----------------------joined by George, C.J., Kennard, Baxter, Chin, Moreno. JJ. concurring opinion by Brown, J.
Sep 28 2004Remittitur issued (civil case)
 
Oct 6 2004Note:
  The entire case record is being sent to the Supreme Ct. Office in L.A.

Briefs
Oct 7 2002Opening brief on the merits filed
 
Dec 6 2002Answer brief on the merits filed
 
Jan 22 2003Reply brief filed (case fully briefed)
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 5 2003Amicus Curiae Brief filed by:
 
Mar 25 2003Response to amicus curiae brief filed
 
Mar 25 2003Response to amicus curiae brief filed
 
Mar 25 2003Response to amicus curiae brief filed
 
Mar 26 2003Amicus Curiae Brief filed by:
 
Apr 23 2003Amicus Curiae Brief filed by:
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 26, 2011
Annotated by robert szykowny

FACTS: The named plaintiffs were “operating managers” and “assistant managers” in Savn-on Drugstores. They brought this suit as a class action on behalf of themselves and those similarly situated, between 600 and 1,400 Sav-on employees, for Sav-on’s alleged violations of overtime laws. The Plaintiffs alleged Sav-on improperly classified them as exempt employees, despite the fact they spent more than 50% of their work time on non-exempt tasks. Sav-on opposed the certification of the class.

PROCEDURAL POSTURE: The trial court granted the plaintiffs motion for class certification, including all current and former “operating managers” and “assistant managers” employed between 1996 and 2001. Sav-on appealed the decision, which the Court of Appeal reversed, vacating the class certification. The Supreme Court granted the plaintiffs’ petition to review the Court of Appeal’s decertification.

ISSUE: The issue resolved here is whether “common issues predominate” in each of the plaintiffs’ cases, making the certification of the class appropriate. The Supreme Court reviews the trial court’s decision for “abuse of discretion.” The plaintiffs argued that “issues respecting the proper legal classification” of the plaintiffs jobs along with “the defendant’s policies and practices and issues respecting operational standardization” would predominate. The trial court found for the plaintiffs, which the defendants contended was error.

HOLDING: The Supreme Court found “a reasonable court could conclude” that the common issues identified by the plaintiff would predominate over individualized damages calculations. The fact that individual damages may need to be calculated or that an individual plaintiff may have to justify a claim does not render class certification inapposite. The defendant’s reliance on Ramirez v. Yosemite Water, Inc. 20 Cal.4th 784 (1999) is inappropriate because that case was not a class action. Finally, California has a state policy in favor of enforcing employment laws by class actions.

ANALYSIS: The significant point on which the trial court based certification was the evidence that the defendant relied entirely on job titles in defining who was exempt and non-exempt. No overtime had ever been paid to any of the employees classed as operating managers or assistant managers, regardless of how they spent their time. That evidence, combined with the plaintiffs allegations, made certification of the class appropriate. The Court of Appeals erred in that it undertook to reweigh the evidence and found it less than conclusive, but the trial court only had to find substantial evidence that the same issues predominated in all the claims.

The defendant’s reliance on Ramirez was ill-conceived because though that was also a misclassification case, it dealt with a seller working on commission, not a manager. Moreover, it was not a class action. Finally, the main point of the Ramirez holding was that employer’s could not rely on their self-serving job descriptions as evidence, which is what the defendant sought to do in this case.

The significance was that the Supreme Court unanimously reaffirmed California’s policy promoting class actions as a means of enforcing the minimum wage and overtime laws.

Justice Brown wrote a concurrence in which he gave his own analysis of the certification factors, believing the majority’s to be confused.

RELATED CASES: Ramirez v. Yosemite Water, Inc. 20 Cal.4th 784 (1999), https://scocal.stanford.edu/opinion/ramirez-v-yosemite-water-co-32026, Lockheed Martin Corp. v. Superior Court, 29 Cal.4th 1096 (2003), https://scocal.stanford.edu/opinion/lockheed-martin-corpeople-v-super-ct-..., Collins v. Rocha, 7 Cal.3d 322 (1972), https://scocal.stanford.edu/opinion/collins-v-rocha-27633, Vasquez v. Superior Court, 4 Cal.3d 800 (1971), https://scocal.stanford.edu/opinion/vasquez-v-superior-court-32920.

TAGS: misclassification, minimum wage, overtime, employment, class action, exempt, manager, Ramirez.

Annotation by Rob Szykowny