caseNo$1887 55

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA
e
e
ROGELIO HERNANDEZ,
Plaintiff-Petitioner
v.
SUFREiviE COURT
FILED
DEC - 7 2010

CHIPOTLE MEXICAN GRILL INC., Frederick K. Ollinch Clerk

Defendant-Respondent.
________________________D.....Jeputy
Petition for Review of a Decision of the Court of Appeal, Second Appellate.
District, Division Eight, Case Number B216004, affirming an order of the
Superior Court of California, County of Los Angeles, Case No. BC373759,
Hon. Terry A. Green
PETITION FOR REVIEW

MICHAEL RUBIN (SBN 80618)

JAMES M. FINBERG (SBN 114850)
EVE CERVANTEZ (SBN 164709)
DANIELLE E. LEONARD (SBN 218201)
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, California 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
MATTHEW J. MATERN (SBN 159798)
DOUGLAS W. PERLMAN (SBN 167203)
PAUL J. WEINER (SBN 111167)
Rastegar & Matern, Attorneys At Law
1010 Crenshaw Boulevard, Suite 100
Torrance, CA 9050 I
Telephone: (310) 218-5500
Facsimile: (310) 218-1155

Attorneys for Plaintiff-Petitioner Rogelio Hernandez

Case No.
----
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
ROGELIO HERNANDEZ,
Plaintiff-Petitioner
v.
CHIPOTLE MEXICAN GRILL INC.,
Defendant-Respondent.
Petition for Review of a Decision of the Court of Appeal, Second Appellate.
District, Division Eight, Case Number B216004, affirming an order of the
Superior Court of Califomi a, County of Los Angeles, Case No. BC373759,
Hon. Terry A. Green
PETITION FOR REVIEW

-.
MICHAEL RUBIN (SBN 80618)
JAMES M. FINBERG (SBN 114850)
. EVE CERVANTEZ (SBN 164709)
DANIELLE E. LEONARD (SBN 218201)
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, California 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
MATTHEW J. MATERN (SBN 159798)
DOUGLAS W. PERLMAN (SBN 167203)
PAUL J. WEINER (SBN 111167)
Rastegar & Matern, Attorneys At Law
1010 Crenshaw Boulevard, Suite 100
Torrance, CA 90501
Telephone: (310) 218-5500
Facsimile: (310) 218-1155

Attorneys for Plaintiff-Petitioner Rogelio Hernandez

TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTRODUCTION 1
ISSUES PRESENTED FOR REVIEW 5
PROCEEDINGS BELOW ~ 6 .
REASONS WHY REVIEW SHOULD BE GRANTED 11
I. GRANT-AND-HOLD REVIEW IS NECESSARY TO ENSURE
UNIFORMITY OF DECISION WITH RESPECT TO THE
PROPER LEGAL STANDARD PENDING THIS COURT'S
DECISION IN BRiNKER 11

II. PLENARY REVIEW SHOULD BE GRANTED TO RESOLVE

IMPORTANT LEGAL ISSUES REGARDING CLASS
CERTIFICATION AND BURDENS OF PROOF THAT WILL
PERSIST AFTER BRINKER. . 13

A.
B.
C.
This Court Should. Grant Review Because the Court of
Appeal's Holding Conflicts With a Long-Standing Precedent
Shifting the Burden of Proof to an Employer That Fails to
Keep Accurate Records of Employee Time ' . . 17
The Court Should Grant Review Because the Court of
Appeal's Conclusion that Resolving the Accuracy of
Chipotle's Records of Missed Breaks WOliid Require
"Thousands of Mini Trials" Conflicts with Established
Authority that Allows Proof by Representative
Testimony ',." 23
The Court Should Grant Review Because the Court of
Appeal's Decision to Allow Individualized Defenses to
Defeat Class Certification. Conflicts with Standards
Established by this Court 28

III. REVIEW IS NECESSARY BECAUSE THE COURT OF APPEAL

ERRED IN HOLDING THAT THE SPECULATIVE POSSIBILITY
OF A TESTIMONIAL CONFLICT,CREATED SUFFICIENT
INTRA-CLASS "ANTAGONISM" TO PRECLUDE CLASS
CERTIFICATION.. . 30
CONCLUSION 35
11

TABLE OF AUTHORITIES
CALIFORNIA CASES
Aguiar v. Cintas Corp. No.2,
(2006) 144 Cal.App.4th 121 20,31,33
Amaral v. Cintas Corp. No.2,
(2008) 163 Cal.App.4th 1157 20, 22 .
Bell v. Farmers Insurance Exchange
(2004) 115 Cal.App.4th 715 25, 26
Cicairos v. Summit Logistics,
(2005) 133 Cal.App.4th 949 12, 16,20,22
Daniels v. Centennial Capital, Inc.,
(1993) 16 Cal.App.4th 467 31
Franco v. Athens Disposal Co.,
(2009) 171 Cal.App.4th 1277 17, 21
Gentry v. Superior Court,
(2007) 42 Cal.4th 443 , 21
Ghazaryan v. Diva Limousine, Ltd.,
(2008) 169 Cal.App.4th 1524 19,22
Hernandez v. Mendoza,
(1988) 199 Cal.App.3d 721 ~ passim
Jaimez v. Daihos USA,
(2010) 181 CaLApp.4th 1286 13, 16
Lee v. Dynamex, Inc., .
(2008) 166 Cal.App.4th 1325 33
Linder v. Thrifty Oil Co.,
(2000) 23 Cal. 4th 429 10
III

Martinez v. Combs,
(2010) 49 Ca1.4th 35 ; , : 34
Murphy v. Kenneth Cole Productions, Inc.,
(2007) 40 Ca1.4th 1094 7
National Solar Equipment Owners' Assocs., Inc. v. Grumman Corp.,
(1992) 235 Ca1.App.3d 1273 31, 33
Reynolds v. Bement,
(2005) 36 Ca1.4th 1075 34
Richmond v. Dart Industries,
(1981) 29 Ca1.3d 462 31, 33
Sav-On Drug Stores, Inc. v. Superior Court,
(2004) 34 Ca1.4th 319 passim
Vasquez v. Superior Court,
(1971) 4 Ca1.3d 800 : .. : 28
FEDERAL CASES
Adoma v. Univ. ofPhoenix,
(E.D. Cal. 2010) 2010 WL 3431804 26
Anderson v. Mt. Clements Pottery Co.,
(1946) 328 U.S. 680 2 0 , 2 ~ 2 5
Blackwell v. Skywest Airlines, Inc.,
(S.D. Cal. 2007) 245 F.R.D. 453 33
Brown v. Federal Express Corp.,
. (C.D. Cal. 2008) 249 F.R.D. 580 12, 13
In re Chevron US.A. Inc.,
(1997) 109 F.3d 1016 27
Cornn v. United Parcel Service, Inc.,
(N.D. Cal. 2005) 2005 WL 588431 26
IV

Dilts v. Penske Logistics LLC,

(S.D. Cal. 2010) 267 F.R.D. 625 26
Kenny v. Supercuts,
(N.D. Cal. 2008) 252 F.R.D. 641 20,21
Kimoto v. McDonalds Corp.,
(C.D. Cal. Aug. 19,2008) 2008 WL 4690536 13, 14
Lopez v. G.A. T Airline Ground Support,
(S.D. Cal. Sept. 13,2010) 2010 WL 3633177 13
Marshall v. Holiday Magic,
(9th Cir. 1977) 550 F.2d 1173 33
Salazar v. Avis Budget Group,
(S.D. Cal. 2008) 251 F.R,D. 529 : 13
Wang v. Chinese Daily News,
(9th Cir. 2010) 623 F.3d 743 16
White v. Starbucks Corp.,
(N.D. Cal. 2007) 497 F.Supp.2d 1080 12, 13
DOCKETED CASES
Bradley v. Networkers Intern. LLC,
Sup. Ct. No. S171257 (May 13,2009) 1
Brinkley v. Public Storage, Inc.,
Sup. Ct. No. S168806 (January 14,2009) 1
Brinker Restaurant Corp. v. Superior Court,
Sup. Ct. No. S166350 (October 22,2008) passim
Brookler" v. Radioshack Corp.,
Sup. Ct. No. S18,6357 (November 17, 2010) 1
Faulkinbury v. Boyd & Associate,
Sup.Ct. No. S184995 (October 13,2010) 1
v

REGULATIONS
8 Cal. Code Regs. tit. 8, 11010-170 17
STATUTES
Cal. Labor Code 226.7 1, 7
Cal. Labor Code 512 1
IWC WAGE ORDERS.
IWC Wage Order 5-2001 . " 1, 7, 8,17
VI

INTRODUCTION
Plaintiff Rogelio Hernandez petitions for review of the Court of
Appeal's decision, certified for publication on October 28,2010, which
affirmed the trial court's denial of class certification in this case challenging
Chjpotle Mexican Grill's failure to compensate its low-wage restaurant
workers for missed meal periods and rest breaks under Labor Code 226.7
and 512 and IWC Wage Order 5-2001 11-12.
The threshold legal issue raised by this Petition is identical to the
issue before this Court in Brinker Restaurant Corp. v. Superior Court, No.
S166350, review granted October 22, 2008, and in each of the four post-
Brinker meal-and-rest-break cases in which this Court has granted review
and deferred further briefing: What standards govern an employer's
obligation to provide meal periods and rest breaks to employees under the
Labor Code and applicable IWC Wage Orders?lI In this case, as in Brinker,
the Court of Appeal held that employers need only "provide, i.e., authorize
and permit" meal periods and rest breaks, and have no legal obligation to
1I See Brinkley v. Public Storage, Inc., No. S168806, review granted and
. briefing deferred January 14,2009; Bradley v. Networkers Intern. LLC, No.
S171257, review granted and briefing deferred May 13, 2009; Faulkinbury
v. Boyd & Assoc., No. S184995, r ~ v i e w granted and briefing deferred
October 13,2010; Brookler v. Radioshack Corp., No. S186357, review
granted and briefing deferred November 17, 2010.
1

ensure that such breaks are actually taken. Exhibit A at 2, 9-13.

Y
Because the threshold legal issue in this case is the same as in
Brinker and the post-Brinker grant-and-hold cases, the Court should at a
minimum issue a grant-and-hold order pursuant to Rule of Court
8.512(d)(2). Vacating the Court of Appeal's decision in light of the
pendency ofBrinker is particularly appropriate given the trial court's
acknowledgment that it would Have granted class certification had it been
required to apply an "ensure" standard to plaintiffs meal period claims.
See Ex. A at 6-7 (emphasis in original) ("The trial court stated that if the
Supreme Court [holds in Brinker that] employers had to ensure employees
take breaks, class action treatment of this case would be appropriate.").
Although the Court has not granted plenary review in the other post-
Brinker cases, there are compelling reasons why it should order full merits
briefing here, given the particular issues raised and how they are presented.
For, no matter what standard this Court adopts in Brinker, this case will still
squarely raise four important, commonly recurring employment law issues
as to which the appellate courts are in considerable conflict:
'l:./ The Court of Appeal's October 28,2010 published opinion is attached as
Exhibit A. Its September 30, 2010 unpublished opinion is attached as
Exhibit B. The Los Angeles Superior Court order denying class
certification (Green, J.) is attached as Exhibit C.
2

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e
1. How should the burden of proof be allocated in an employment
case when the employer's liability rests upon the accuracy of its own time
records (including records that California law requires the employer to
maintain)? See infra at 17-23.
2. Regardless of who bears the burden of proof, mayan employer
insist upon individualized worker-by-worker and break-by-break testimony
to establish whether its time records are accurate in documenting which
breaks were actually missed? See infra at 23-27.
3. In an employment class action, maya plaintiff satisfy the
threshold showing necessary for certification by showing that classwide
liability may be established by the employer's time records coupled with
evidence of uniform workplace practices and policies, where the employer
proposes to defend by conducting a worker-by-worker, time record-by-time-
record inquiry into the accuracy of its records? See infra at 28-30.
4. Under what circumstances (if any) does the speculative possibility
of testimonial conflict among class members at trial constitute sufficient
grounds for denying class certification? See infra at 30-35.
Like many California employers, Chipotle has a "tap on the
shoulder" break policy, which prohibits crew members from taking a break
unless and until their supervisor directs them to clock out for the break, and
3

employees are not permitted to choose to workthrough a break. Ex. A at 2;

App. Vol 4, 839. In such cases, the only time a break can be missed is
when a supervisor fails to tell the affected worker to take the break - which
effectively means the employer has "prohibited" that particular break,
which would be unlawful no matter what standard is adopted in Brinker.
Consequently, this case also directly raises the recurring question -
addressed in many Court of Appeal decisions, but never by this Court - of
the extent to which workers may rely on their employers' time records and
on reasonable inferences drawn from those records, in establishing a
statutory wage and hour violation. This case also raises fundamental
qllestions about when, in the class action context, plaintiffs may rely on
time records coupled with representative testimony, as opposed to
individualized worker-by-worker testimony focusing on each break alleged
to have been missed.
Because this case squarely raises the next set of issues that will have
to be resolved after Brinker - which is how to determine which breaks were
missed and whether an employer's challenge to the accuracy of its own time
records creates individualized issues that preclude class certification - this
Court should grant review and order full merits briefing, to secure
uniformity and provide guidance to lower courts faced with similar
4

workplace policies in which the employer's liability depends upon the

accuracy of its own time records. Plenary review is therefore warranted
under Rule of Court 8.500(b)(1) to "secure uniformity of decision" with
other California appellate decisions regarding these issues, or in the
alternative under 8.500(b)(4) for the purpose of returning the case to the
Court of Appeal with instructions.
ISSUES PRESENTED FOR REVIEW
I. ~ e t h e r this Court should grant review of the Court of Appeal's
published d,ecision, which decides an issue currently pending in Brinker and
four subsequent grant-and-hold cases, in its principal holding that
employers need only "authorize and permit" meal periods but not "ensure'"
that those meal period breaks are actually taken.
2. Whether the Court of Appeal applied the wrong standard and
misallocated the burden of proof in allowing defendant to defeat class
certification by contesting the accuracy of its own time records' and in
requiring each employee to prove the accuracy of those time records with
respect to each missed break.
3. Whether class certification may be denied in an employment case
on conflict-of-interest grounds, simply because a small number of class
members allegedly occasionally drifted in and out of supervisory roles and
5

might possibly dispute at trial the testimony of fellow class members whom
they allegedly supervised.
PROCEEDINGS BELOW
In July 2006, plaintiff Rogelio Hernandez filed this class action
against his employer, Chipotle Mexican Grill, Inc., alleging that Chipotle
. deprived him and other similarly situatednon-managerial "crew members"
of statutorily mandated meal periods and rest breaks, without providing the
legally required hour of premium pay for each missed break. App. Vol. 2,
10. During the class period, Chipotle's crew members were paid an average
of only $8.37 per hour. App. Vol. 4, 866.
After preliminary discovery, the parties filed cross-motions for and
against class certification. App. Vol. 1, 181; App. Vol. 3, 793. Chipotle's
motion to deny class certification included identiCally-worded declarations
from 56 crew members and 17 managers, who stated that no meal periods
or rest breaks were ever missed. App. Vol. 2, 332 - Vol. 3, 747. Plaintiff
countered with individualized declarations from 19 crew members who
explained that they and their co-workers were prohibited from t&king .breaks
unless specifically sent on break by their manager, who often failed to give
them breaks or called them back early, especially when the restaurants were
busy. App. Vol. 4, 820; Vol. 7, 1428,1636. Plaintiff also relied upon
6

Chipotle's employee handbook and written workplace policies, which

prohibited workers from self-initiating breaks, from voluntarily forgoing
any breaks, or from returning early from any break unless directed to return
by a manager. App. Vol. 1,244; App. Vol. 4, 839, 852; see Ex. A at 3
("Employees are not permitted to self-initiate breaks and are prohibited
from skipping breaks.").1'
Shortly bef9re the class certification hearing; the trial court ordered
Chipotle to produce all class member time records covering the full class
period dating back to July 2003. RT 2/9/09, A-23-24. Those records
showed that of the 2,074,451 shifts during the class period, 553,868 had
missed, delayed, or shortened meal periods and 270,245 had missed,
delayed, or shortened rest breaks. Ex. A at 5; App. Vol. 9, 2145-48.1' If
those records are accurate - as Chipotle's own policies and California law
J/ Chipotle workers are fully paid for all break time, including meal breaks,
and are entitled to free food and drink during breaks. Ex. A at 3; App. Vol.
1,243-44. Not surprisingly, Chipotle did not present any evidence that any
crew member ever violated a supervisor's break order by working through a
designated break. See PI. Petition for Rehearing in Ct. of App. at 18-19.
1/ Under California law, riot only must an employer provide meal periods
and rest breaks after prescribed work but those breaks must be
provided within a designated time frame and must last for the designated
time period. See Ex. A at 9-10 & nn. 4-5, quoting IWC Wage Order 5-2001
11 (meal periods), 12 (rest breaks). An employer that fails to provide a
full, timely meal or rest break must pay the worker an additional hour's
wages. Id.; see Labor Code 226.7(b); Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal.4th 1094, 1104.
7

require them to be, see App. Vol. 1,244; Vol. 4, 839; IWC Wage Order 5-
2001 7(A)(3) - they would establish violations of the Labor Code's meal-
and-rest break requirement no matter what standard this Court adopts in
Brinker, given Chipotle's policy of not allowing crew members to self-
initiate breaks.
The record shows, however, that Chipotle has never paid any crew
member for a missed, delayed, or shortened break during the class period.
See RT 2/9/09 A-17:3-8; App. Vol. 4, 858-59. Nor h ~ s Chipotle ever
investigated why its own records show so many missed, delayed, or
shortened breaks. Id.
Chipotle primarily defended against class certification by arguing
that its time records were inaccurate because they did not distinguish
between actual missed breaks, and breaks that were taken but not recorded.
App. Vol. 5, 1239-62. Plaintiff responded that for purposes of class
certification, it was enough to show that the time records, in conjunction
with representative employee testimony and Chipotle's own workplace
policies and legal obligations, constituted classwide proof that would be .
sufficient to establish a prima facie case of liability. App. Vol. 7, 1607-26.
Plaintiff also argued that it should be Chipotle's burden to establish that
crew members actually took their breaks where Chipotle's own records
8

show that such breaks were missed, delayed, or shortened. Id.

The Superior Court denied plaintiffs motion for class certification
and granted Chipotle's motion to deny certification. Ex. A at 6-7; Ex. Cat
*10. The court found that plaintiff had satisfied the requirements of
numerosity, ascertainability, typicality, and adequacy; but after predicting
that this Court in Brinker would adopt an "authorize and permit" rather than
"ensure" standard, the trial court concluded that plaintiff could not establish
predominance or superiority under such a standard. Ex. C at *8-9. As a
separate ground for decision, the Superior Court concluded that some class
members may have filled in as temporary supervisors, and - based on the
court's belief that individualized testimony would be required to determine
liability - that these temporary supervisors might disagree at trial about
which particular breaks were taken, thus giving rise to "antagonism ... of
such a substantial degree that purpose of class certification would- be
defeated. Richmond v. Dart Industries (1981) 29 Ca1.3d 462, 472." Id. at
2367.
The Court of Appeal (2nd App. Dist., Div. 8) affirmed, initially in an
unpublished opinion. See Ex. B (Grimes, J.,joined by Flier, acting P.J. and
O'Connell, J., sitting by designation). Plaintiff then filed a timely petition
for rehearing to address factual misstatements in the Court of Appeal's
9

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e
opinion, while Chipotle and several statewide employer organizations
requested publication.
On October 28, 20 I0, the Court of Appeal certified its opinion for
publication and denied plaintiffs petition for rehearing (after modifying the
opinion). The Court of Appeal's decision acknowledged that under
Chipotle's tap-on-the-shoulder break policy, no crew member could take a
meal or rest break until a supervisor said to take the break. Ex. A at 2.
Nonetheless, it concluded that plaintiff could not adjudicate Chipotle's
liability for missed breaks on a c1asswide basis, but must prove for each
alleged violation that Chipotle's time records were accurate and that the
employee did not actually take the break. Ex. A at 5 & n.l.
The Court of Appeal began by affirming the trial court's threshold
legal ruling that California employers are only required to "permit" rather
than "ensure" meal periods for their workers. Ex. A at 9-13. The Court
rejected plaintiffs arguments that the trial court not only got this wrong on
the merits, but should not have decided it in the first place (because, under
Linder v. Thrifty Oil Co. (2000) 23 Ca1.4th 429, 439-41, and Sav-On Drug
Stores, Inc. v. Superior Court (2004) 34 Ca1.4th 319,338, courts must
assess the predominance of common issues under plaintiff's legal theories).
See Ex. A at 13-14.
10

.'
The Court of Appeal then held that the trial court did not abuse its
discretion in denying class certification, because individual issues would
necessarily predominate under an "authorize and permit" standard. Id. at
15-18: The Court held that plaintiff could not establish liability through
common evidence, but must instead prove, on an individual basis, whether
each missed break in the records was actually missed, and if so, ,why it was
missed. Id. at 16. In so holding, the Court rejected plaintiffs argument that
the burden must be placed on Chipotle to prove the inaccuracy of its own
legally mandated time records. Ex. A at 16 n.7.
Finally, the Court of Appeal held that, because plaintiff could not
, .
establish Chipotle's liability without conducting thousands of break-by-
break "mini-trials," the potential testimoniai conflict between temporary
supervisors and other c l a s ~ members would "defeat the purpose of class
certification" (id. at 18) - a conclusion that ignored the absence of any
"actual" conflict, the availability of subclassing (if any actual conflict ever
arose), this Court's contrary holding in Richmond, and many contrary
appellate rulings in similar cases.
11

I.
REASONS WHY REVIEW SHOULD BE GRANTED
GRANT-AND-HOLD REVIEW IS NECESSARY TO ENSURE
UNIFORMITY OF DECISION WITH RESPECT TO THE
PROPER LEGAL STANDARD PENDING THIS COURT'S
. DECISION IN BRINKER.
The Court should grant review and, at a minimum, defer further

briefing until after Brinker is decided, because the threshold ground for the
lower courts' denial of class certification was that "employers must provide
employees with [meal] breaks, but need not ensure employees take breaks."
Ex. A at 2,9-13; Ex. Cat 2363-64.
11
Whether this is the correct standard under California law is the
precise issue ,pending before this Court in Brinker and the post-Brinker
grant-and-hold cases. Meanwhile, the current law in California - with
which the Court of Appeal's decision is in direct conflict - is that
"employers have 'an affirmative obligation to ensure that workers are
actually relieved of all duty'" during meal periods. Cicairos v. Summit
Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-63, review & depub. denied
(2006) No. S139377. Although the lower court in Brinker held otherwise,
1
1
The Court rested its holding on a discussion of the regulatory history, as
well as the analysis adopted by several recent federal court decisions. I..d. at
13, 16, quoting White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d
1080, 1088-89 and Brown v. Federal Express Corp. (C.D. Cal. 2008) 249
F.R.D. 580, 585.
12

that decision was vacated by this Court's grant of review, just as every other
appellate decision that later adopted that approach has now been vacated by
a grant-and-hold order. See supra at 1 n.l.
The only appellate cases addressing these issues in which review has
not been granted are Cicairos and Jaimez v. Daihos USA (2010) 181
Cal.AppAth 1286, which are directly contradicted by the Court of Appeal's
analysis in this case. Several federal district courts have adopted a "pennit"
standard, though, which has caused additional confusion concerning the
proper standard.
Q
' To prevent the spread of further conflicts, and for the
additional reasons set forth below, this Court should at a minimum grant
review of the Court of Appeal's published decision and hold this case
pending its decision in Brinker.
II. PLENARY REVIEW SHOULD BE GRANTED TO RESOLVE
IMPORTANT LEGAL ISSUES REGARDING CLASS
CERTIFICATION AND BURDENS OF PROOF THAT WILL
PERSIST AFTER BRINKER.
Once this Court decides Brinker, the next question that will arise in
many meal-and-rest-break cases - regardless of which legal standard is
! See, e.g., Lopez v. G.A. T Airline Ground Support (S.D. Cal. Sept. 13,
2010) 2010 WL3633177, *10; Kenny v. Supercuts (N.D. Cal. 2008) 252
F.R.D. 641, 645-46; White, 497 F.Supp.2d at 1088-89; Kimoto v.
McDonalds Corp. (C.D. Cal. Aug. 19, 2008) 2008 WL 4690536, *4-6;
Salazar v. Avis Budget Group (S.D. Cal. 2008) 251 F.R.D. 529, 532-34;
Brown, 249 F.R.D. at 585.
13

..

adopted - will ask how can affected workers prove the number of meal or
rest breaks that their employer unlawfully failed to provide them? Plaintiff
in this case sought to rely on representative testimony from Chipotle
employees, common evidence of Chipotle policies, and Chipotle's own time
records to prove that Chipotle frequently denied breaks to its crew members
and never paid any crew member the statutorily-required compensation for
any missed breaks. Chipotle primarily defended by challenging the
accuracy of its own time records, contending that its employees took breaks
but sometimes - contrary to Chipotle policy - forgot to record them. The
Court of Appeal agreed with Chipotle that the trial court must resolve for
each missing break whether the affected employee actually took the breaks
that the time records report as missed. Ex. A. at 16 ("A trier of fact will
have to ascertain if Chipotle employees actually missed breaks, or simply
forgot to record them ....").
As a result, this case directly raises a set of important issues that
have repeatedly arisen in wage-and-hour and other employment cases, and
will continue to arise even after this Court decides Brinker: how does an
employer's challenge to the accuracy of its own time records affect the
burden of proof, and to what extent may such a challenge preclude class
14

certification by creating individualized issues?1

1
As several employer groups pointed out in successfully requesting
publication, there are "hundreds, if not thousands," of meal-and-rest-break
cases pending in California courts, and "numerous cases pending in the trial
courts involve factual situations very close to" this c a s e . ~ Many of those
cases, like this, are putative class actions, and many will likewise involve
disputes over the accuracy of the defendant employer's time records - a
trend that will only increase if the Court of Appeal's decision is allowed to
stand. All of these cases will raise the questions of which party should bear
the burden of proof with respect to the accuracy of the records, what proof
is sufficient, and, in putative class action cases, whether employees can
prove through common, classwide evidence that they actually missed the
breaks that their employer's time records show they missed.
If this Court decides in Brinker that the standard for meal break
violations is whether the employer has "ensured" such breaks, the question
11 See, e.g., Kimoto, 2008 WL 4690536, *6 (denying certification of
restaurant worker class after employer contested accuracy of its break
records); Kenny, 252 F.R.D. at 646 (denying certification of meal break
claims and rejecting plaintiffs' attempt to rely on time records).
,&1 See Request for Publication of the Employers Group, The California
Chamber of Commerce, the California Hospital Association, and the
California Manufacturers & Technology Association (Oct. 19,2010) at 1;
Request for Publication of the California Employment Law Council (Oct.
12, 20 lOy at 2.
15

why an employee missed a meal break will not matter (because if an

employee misses a break the employer will be liable for failing to ensure
that the break was taken). Even under a "permit" standard, however, in
cases where the employer has a "tap-on-the-shoulder" break policy, as here,
there will be no need to inquire into "why" a worker failed to take a
particular break. In such cases, the company's managers exercise complete
control over when breaks may be taken, and employees are prohibited from .
disregarding' their manager's order by skipping a designated break.
Thus, for the large number of cases involving employers with
tap-on-the-shoulder policies (or other classwide policies that eliminate any
question about "why" missed breaks were missed), the only question
relevant to liability will be "which" breaks were actually missed.
2
! That is
2! Other categories of employment cases in which there will be no need to
individually prove why employee missed breaks include misclassification
cases (where an employer may have misclassified all of its employees as
exempt and ineligible for breaks and therefore did not provide such breaks),
see, e.g, Jaimez, 181 Cal.App.4th at 1303-04, and cases in which the
employer structured its workers' job duties so to prevent them as a practical
matter from taking their breaks. See, e.g, Cicairos, 133 Cal.App.4th at
962; Wang v. Chinese Daily News (9th Cir. 2010) 623 F.3d 743, 758; see
also Ex. A at 12-14 (purporting to distinguish Cicairos as a case in which
"the employer's business practices effectively deprived employees of the
ability to take meal breaks," and Jaimez as a case in which "the employees
missed meal breaks because of the employer's practice of designating
delivery schedules and routes that made it impossible for employees to both
take their breaks and complete their deliveries on time").
16

why, however Brinker may be decided, plenary review should be granted in

this case to decide whether an employer whose time records document
California Labor Code violations can avoid liability by shifting to plaintiffs
the burden to prove the accuracy of those time records - and can defeat
class certification merely by asserting that their time records do not
accurately reflect when their employees were actually working.
A. This Court Should Grant Review Because the Court of
Appeal's Holding Conflicts With a Long-Standing
Precedent Shifting the Burden of Proof to an Employer
That Fails to Keep Accurate Records of Employee Time.
California law, set forth in IWC Wage Order 5-2001 7(A)(3),
expressly requires employers to maintain accurate time records that
document every meal period taken and missed:
(A) Every employer shall keep accurate information with
respect to each employee including the following: ...
(3) Time records showing when the employee begins and
ends each work period. Meal periods, split shift intervals and
total daily hours worked shall also be recorded. Meal periods
during which operations cease and authorized rest periods
need not be recorded.
(Emphasis added); see Franco v. Athens Disposal Co. (2009) 171
Cal.App.4th 1277, 1299 ("By law, an employer must maintain time records
showing an employee's (1) 'total daily hours worked' and (2) meal periods,
17

unless 'operations cease' during meals."). 101

Although 7(A)(3)'s recordkeeping requirement applies only to meal
periods and not to rest breaks, Chipotle, like many California employers,
requires accurate contemporaneous record of all breaks. Thus, Chipotle's
written handbook policy states:
All crew must record time worked and rest periods using
the POS terminal. ...
We provide you with breaks as appropriate per state law.
Your manager will review the break policy with you. Though
you need to clock in or out for these break periods, you do get
paid for them. Clocking in and out for anyone other than
yourself is prohibited.
App. Vol. 1,244 (emphasis added). Moreover, Chipotle requires that all
employee time records be accurate. See id. at 253 (requiring employees "to
adhere strictly" to Chipotle's "written policies and procedures" (including
its policy requiring that "[a]ll records, including employment [and] payroll
data ... must ... be prepared with accuracy and care"), and stating that
"[d]ishonesty or carelessness in recording or reporting information [is]
101 IWC Wage Order 5-2001 is one of 13 largely identical wages orders
regulating the wages, hours, and working conditions of specific industries,
three relating to specific occupations, and one addressing "miscellaneous
employees." See 8 Cal. Code Regs. tit. 8, 11010-170. The.record-
keeping requirements in those Wage Orders were added to facilitate
enforcement of the workers' wage-and-hour rights, including their right to
statutory meal periods. See Statement of Basis, IWC Wage Order (1980)..
18

stI:ictly prohibited ...."); id. at Vol. 4, 839 (stating procedure requiring

managers to "edit time punches" when the "crew person forgets to punch in
or out for their breaks.").ll!
The Court of Appeal's conclusion that each plaintiff must
individually prove the accuracy of eactI and every missed break record
abruptly departs from a long line of California appellate cases which hold
that where an employer has failed to keep accurate records of employee
time, the employees are entitled to prove their hours worked (or in this case,
their breaks missed) through reasonable inference - in effect, easing their
burden of proof. See, e.g., Hernandez v. Mendoza (1988) 199 Cal.App.3d
721, 726-27 ("where the employer has failed to keep records required by
statute, the consequences for such failure should fall on the employer, not
the employee.... The employee has carried out his burden ... ifhe
produces sufficient evidence to show the amount and extent of work as a
matter of fact and reasonable inference."); Ghazaryan v. Diva Limousine,
ll! According to Chipotle's posted workplace policies:
A Manager Can Only Edit Time Punches for the Following
Reasons: The crew person forgets to punch in or out for their
breaks. You can edit this time punch. If you "think" the
person took the break ... verify and get their signature."
App. Vol. 1,244; also Vol. 5, 1271 ~ 1 8 (Chipotle holds all employees
accountable for compliance with company policy).
19

Ltd. (2008) 169 Cal.AppAth 1524, 1536 n.l1 ("To the extent such data
[needed to prove on-call hours] are not readily accessible, that absence is
attributable to the inadequacy of [the employer's] own records and cannot
be relied upon to resist the attempt of its employees to [prove their case]");
Amaral v. Cintas Corp. No.2 (2008) 163 Cal.AppAth 1157, 1187-91
(placing burden of proof on employer to prove which employees did not
work on contract, where employer could have maintained accurate records
of service contract work); Aguiar, 144 Cal.App.4th at 134-35 (employer
cannot defeat classwide liability by asserting inaccuracy or incompleteness
of its own records); Cicairos, 133 Cal.AppAth at 961 (shifting burden to
employer in light of failure to keep records to prove that it provided meal
breaks). The defendant employer then bears the burden of overcoming
plaintiffs' proof through affirmative evidence (here, that those missed
breaks were actually taken), but it has no right to insist on individualized
proof. E.g., Mendoza, 199 Cal.App.3d at 726-27. As the U.S. Supreme
Court explained in Anderson v. Mt. Clements Pottery Co.:
[W]here the employer's records are inaccurate or inadequate
and the employee cannot offer convincing substitutes a ...
difficult problem arises. The solution, however, is not to
penalize the employee by denying him any recovery on the
ground that he is unable to prove the precise extent of
uncompensated work. Such a result would place a premium
on an employer's failure to keep proper records in conformity
with his statutory duty....
20

(1946) 328 U.S. 680,687.

The Court of Appeal broke with this established line of authority,
creating a conflict that needs to be resolved by this Court. Instead of
pennitting plaintiff and the putative class to prove the number of missed
breaks "as a matter of fact and reasonable inference," Mendoza, 199
Cal.App.3d at 727, the Court instead required break-by-break proof to
establish the precise circumstances underlying each instance in which
Chipotle's time records showed a missed, delayed, or shortened break. Ex.
A at 16. Supreme Court review is needed to clarify that the Court of
Appeal misallocated the burden of proof under these circumstances, which
commonly occur in employment litigation.
The Court of Appeal's misplaced burden creates a perverse incentive
for employers to avoid keeping accurate records, even when legally
required, to preserve the argument that their own records are unreliable to
defeat class certification on the basis of the supposed need for
individualized proof. It was precisely to avoid this perverse incentive that
other courts have concluded that the employer should bear the burden when
there is a dispute over the accuracy of workplace records. To allow the
Court of Appeal's holding to stand would not only create tunnoil in
employment litigation, but would encourage employers to maintain
21

inaccurate records, thus effectively exculpating themselves from liability for

their wage and hour violations. Cf Gentry v. Superior Court (2007) 42
Cal.4th 443, 457 (addressing exculpatory effects of precluding class actions
in wage and hour litigation); Franco, 171 Cal.App.64th at 1297-99
(applying Gentry to meal-and-rest break claims).
The Court of Appeal, in a cryptic footnote, attempted to distinguish
these cases by stating that Chipotle did not deliberately fail to keep time
records or deliberately falsify its records. Ex. A at 16 n.7. Review by this
Court is needed to repudiate that purported distinction. The underlying
justification for shifting the burden is not limited to cases where the
employers falsify or keep no records; for as these cases have recognized, the
burden shifts even when the employers' records are "inaccurate or
inadequate," Mt. Clemens, 328 U.S. at 687; Mendoza, 199 Cal.App.3d at
727, and where the employers' records are not legally mandated. See, e.g.,
Ghazaryan, 169 Cal.App.4th at 1536 n.ll; Amaral, 163 Cal.AppAtli at
1187-91; Cicairos, 133 Cal.AppAth at 961-63.ll!
11
1
The Court of Appeal's statement that Chipotle did not purposefully
keep inaccurate meal break records is also contradicted by that Court's own
findings. Chipotle's initial declarations stated that its managers corrected
employee time records. In response to plaintiffs reliance on those records
as accurate, Chipotle submitted additional declarations shortly before the
class certification hearing stating that in 2006 Chipotle began instructing
(continued...)
22
.'

In this case, Chipotle easily could have ensured the accuracy of all
meal-and-rest-break records, simply by enforcing its procedures requiring
accuracy and managerial review and correction. This Court should grant
review to make clear that an employer cannot avoid liability by the
expedient of allowing sloppy record-keeping and then contending that its
workers must affirmatively prove the accuracy of each time record.

B. The Court Should Grant Review Because the Court of

Appeal's Conclusion that Resolving the Accuracy of
Chipotle's Records of Missed Breaks Would Require
"Thousands of Mini Trials" Conflicts with Established
Authority that Allows Proof by Representative Testimony.

Review is also warranted to bring conformity to the appellate

decisions concerning the use of representative testimony and statistical
sampling where an employer's Labor Code violations potentially affect
large numbers of employees and/or where there a large numbers of
III (. ..continued)
managers not to correct inaccurate break records. See Ex. A at 4, 16.
Chipotle's instructions to its managers to ignore errors in legally mandated
records certainly establishes at least a "purposeful[] fail [ure]" to keep
accurate records, even if it does not rise to the level of "deliberate
falsification." (In any event, the record also includes considerable evidence
that Chipotle's managers continued to correct inaccurate meal and rest
break records after 2006, as required by Chipotle's written and posted
workplace policies. See Ex. A at 4 (noting that despite the asserted change
in policy, "some managers edited employees' time records to record meal
and rest breaks when an employee forgot to clock in or out."); Petition for
Rehearing at 20-24; App. Vol. 2, 350 ~ 1 6 ; Vol. 7, 1501, 1520, 1548, 1556,
1568).
23

violations (even affecting only one employee);

The putative class in this case includes approximately 12,000
individuals, with claims dating back to July 2003. According to Chipotle's
time records, more than two million shifts were worked in California by
putative class members during that period, and Chipotle's time records'
document hundreds of thousands of shifts with missed, delayed, or
shortened breaks. App. Vol. 9, 2145-48.
As a practical matter, given the sheer number of missed breaks
reflected in Chipotle's records, it is doubtful that any single plaintiff, let
alone a group of co-workers or the entire proposed class of crew members,
could affirmatively prove the circumstances surrounding each missed break,
as the Court of Appeal seemed to require by its conclusion that classwide
adjudication would require "thousands of mini-trials." Ex. A at 16. Thus,
whether this case proceeds only on behalf of plaintiff Hernandez, or on
behalf of all Chipotle crew members who signed declarations attesting to
missed meal and rest breaks, or as a class action involving thousands of
plaintiffs, it can only be adjudicated through representative evidence. No
matter how many or how few plaintiffs pursue claims in this case, the t.rial
court could not possibly adjudicate each contested time record separately;
and the same efficient case management techniques that would enable one,
24

or a handful, of plaintiffs to litigate the accuracy of their time records could

easily be applied to the entire class. So, even without the class action
overlay, the Court of Appeal erred in-not permitting plaintiff to meet his
threshold burden through reasonable inferences and estimates drawn from
Chipotle's time records and representative testimony. See Mendoza, 199
Cal.App.3d at 726-27; Mt. Clemens, 328 U.S. at 687.
There are only two possible explanations for each time record in a .
"tap on the shoulder" meal-and-rest-break case like this. Either the break
was actually missed (in which case Chipotle should be liable under its tap-
on-the-shoulder policy for failing to send the worker on break); or the
seemingly missed break was actually taken, but the affected crew member
forgot to clock out and the on-duty manager did not correct the inaccurate
time entry (in which case Chipotle should not be liable). These are the only
two possible explanations, which is why classwide adjudication based on
burden-shifting and a statistically valid sampling of the class provides a far
more just and efficient procedure for determining liability than requiring
12,000 separate lawsuits concerning the validity of 800,000 separate time
records. See Sav-On, 34 Ca1.4th at 333; Bell v. Farmers Ins. Exchange
(2004) 115 Cal.AppAth 715, 750-51 (explaining why classwide treatment
of low-wage workers' wage claims avoids "the sort of random and
25

fragmentary enforcement that will fail to effectively assure compliance" if

SUGh workers are forced to proceed on an individual basis).11
1
As the>Court of Appeal explained in Bell, the use of statistical
sampling does not relieve plaintiffs burden to prove its case,
but rather offers a different method of proof, substituting
inference from membership in a class for an individual
employee's testimony of hours worked for inadequate
compensation. It calls for a particular form of expert
testimony to carry the initial burden of proof, not a change in
substantive law."
Bell, 115 Cal.App.4th at 750; accord Sav-On, 34 Cal.4th at 333 (citing this
language with approval). 141 Yet under the Court of Appeal's approach,
111 While the Court of Appeal asserted.that Chipotle's policies gave crew
members no economic "incentive to clock in and out," Ex. A at 16, it
overlooked that Chipotle had a mandatory clock-in/clock-out policy,
enforceable through disciplinary action, which provided a strong incentive
for crew members (and their supervisors) to ensure that all break time was
properly recorded. See supra at 18 & n.ll.
11
1
See also Dilts v. Penske Logistics LLC (S.D. Cal. 2010) 267 F.R.D. 625,
638 (certifying California meal and rest break class; rejecting argument that
statistical sampling should not be used to prove liability in California meal
and rest break class action because the "only proper way to litigate these
claims is trial testimony by and cross-examination of each claimant," and
concluding that "[a]s to liability, the use of statistical sampling, at least
when paired with persuasive direct evidence, is an acceptable method of
proof in a class action"); Adorna v. Univ. ofPhoenix (E.D. Cal. 2010) 2010
WL 3431894; *5-8(granting class certification in overtime case and
approving the use of representative testimony and statistical sampling of
time records to prove liability and damages, despite arguments that
employees kept inaccurate time records); Cornn v. United Parcel Service,
Inc. (N.D. Cal. 2005) 2005 WL 588431, *11-12 (certifying meal break class
(continued...)
26

every worker alleging a meal or rest break violation would be required to

testify - and to recall - the specific circumstances of each missed break
dating back to 2003 to confirm that each missing break is one the worker
actually failed to take.
The Court of Appeal's analysis in this case is irreconcilable with the
cases cited above. For this reason as well, plenary review should be granted
. to address the recurring issue of when, and under what circumstances,
plaintiffs in employment litigation may rely on statistical sampling and
representative evidence to establish classwide liability. While the precise
methodology for such sampling cannot be determined until discovery is
.further along, it was surely error for the Court of Appeal to reject the
concept of proving classwide liability through such evidence coupled with
contemporaneous time records..lit
11/ ( ...continued)
where employer argued that workers failed properly to record their meal
. breaks and finding that parties' dispute over accuracy of records was itself a
common issue that would ultimately need to be decided by the jury); In re
Chevron US.A. Inc. (1997) 109 F.3d 1016, 1019-21 (approving
'bellweather' liability trials); Newberg & Conte, 3 Newberg on Class
Actions (4th ed. 2002) 10.5 at 483 ("Challenges that such aggregate proof
affects substantive law and otherwise violates the defendant's due process
or jury trial rights to.contest each member's claim individually, will not
withstand analysis.").
.lit If plenary review is granted and this case is remanded for a class to be
certified, the trial court might decide (depending on the evidence) to create
(continued...)
27

C. The Court Should Grant Review Because the Court of

Appeal's Decision to Allow Individualized Defenses to
Defeat Class Certification Conflicts with Standards
Established by this Court

The important burden-shifting principles discussed above have been

applied in many prior employment cases, in which courts have held that an
employer cannot defeat liability by asserting the inaccuracy of its own
records. In the class action context, these principles are also supported by
another well-established concept, with which the Court of Appeal's
published opinion in this case also conflicts - that once the plaintiff class
demonstrates that it can establish a prima facie case of liability through
common classwide evidence, defendant may not defeat class certification by
arguing that it has individualized defenses to those class action claims. See,
e.g., Sav-On, 34 Ca1.4th at 329-30; Vasquez v. Superior Court (1971) 4
Ca1.3d 800,811-15& n.9.
In Sav-On and Vasquez, this Court recognized that to obtain class
certification, a plaintiff n(:ed only show an ability to establish classwide
liability under plaintiffs theory of the case, based on common, classwide
.W ( ...continued)
subclasses reflecting the different types of violations reflected in Chipotle's
time records. For example, the trial court might consider using different
samples to test the accuracy of records showing missed breaks versus
delayed breaks versus breaks that were shorter than legally required.
28

evidence - and that defendant cannot automatically defeat class certification

by arguing that it has individualized defenses to liability that would
predominate. See, e.g., Sav-On, 34 Cal.4th at 327,334,339. Here, plaintiff
can establish Chipotle's classwide liability through evidence of common
workplace practices and policies (e.g, Chipotle's "tap-on-the-shoulder"
policy, its requirement of accurate record-keeping and time-keeping, and its
failure to have ever paid a single crew member for a missed break) coupled
with classwide electronic time records. Given the lower burden of proof
applicable to a case like this, Chipotle should not have been able to defeat
class certification by asserting a purported right to conduct a break-by-break
inquiry into the accuracy of each time record: it has no right to
individualized, violation-by-violation proofs in presenting its defense.
In sum, plenary review is needed because the Court of Appeal's
published decision creates irreconcilable conflicts with at least three lines of
authority. The case raises fundamentally important issues to the future of
wage and hour litigation, including whether the burden of proving what
hours were actually worked should fall on an employer that contends that it
has failed to keep accurate records; whether that burden can be discharged
through representative testimony, perhaps based on a randomly sampled
cross-section of the class (rather than only on a break-by-break, time record-
29

. by-time record basis); and whether a defendant should be able to rely on

individualized defenses to defeat class certification by contending that its
time records are inaccurate.
III. REVIEW IS NECESSARY BECAUSE tHE COURT OF
APPEAL ERRED IN HOLDING THAT THE SPECULATIVE
POSSIBILITY OF A TESTIMONIAL CONFLICT CREATED
SUFFICIENT INTRA-CLASS "ANTAGONISM" TO
PRECLUDE CLASS CERTIFICATION.
Plenary review should also be ordered to resolve an important
appellate conflict and to give guidance to the lower courts concerning
when, if ever, the future possibility of some class members testifying
inconsistently with others creates intra-class "antagonism of so substantial a
degree" as to preclude class certification - a circumstance that has never
been found to exist by any Court ofAppeal, until this case.
In the last section of its published decision, comprising a single
paragraph, the Court of Appeal affirmed the denial of class certification on
the alternative ground that there was apotential for a testimonial conflict
among class members at trial. Ex. Aat 18. Based on the conclusion that
individual testimony would be required from every class member to prove
liability, the Court concluded that the potential for testimonial conflict
between class members necessarily created "antagonism of such a
substantial degree that the purpose for class certification would be
. 30

Ii

defeated" within the meaning of Richmond, 29 Ca1.3d at 476-77. Id. This

potential conflict rested on the Court's speculation that to the extent some
class members "move[d] in and out of supervisory roles" during the class
period, they might be "accuse[d]" by other class members of being
responsible for Chipotle's failure toprovide their required breaks. Id.
In addition to resting on the false premise that individual class
member testimony is necessary (which is wrong for the reasons given
above), this portion of the Court of Appeal's decision also directly conflicts
with Richmond and many Court of Appeal decisions that refused to deny
class certification based on speculatiVe testimonial conflicts, such as Nat'l.
Solar Equipment Owners' Assoc., Inc: v. Grumman Corp. (1992) 235
Cal.App.3d 1273; Daniels v. Centennial Capital, Inc. (1993) 16
Cal.AppAth 467; and Aguiar, 144 Gal.AppAth at 138. If permitted to
stand, this alternative holding will make it nearly impossible for workers to
obtain class certification in any future employment case in which some
class members - even a very small number, as here -weretemporarily
delegated any supervisory responsibilities (or, taking the Court of Appeal's
analysis to its logical conclusion, in'any case in which different class
members might recall key events differently).
There is little evidence in the record to support the factual predicate
31

for the lower courts' substantial-antagonism analysis - that Chipotle

sometimes asked crew members to function as temporary stand-in
supervisors. But even assuming for.purposes of this Petition that Chipotle's
managers delegated to some crew members the task of telling others when
to take a break, the speculative possibility that one class member might
dispute another's recollection of events at trial has never been found
sufficient to create "antagonism" sufficient to defeat certification.
16
/
No other California appellate court has ever found that the mere
possibility of a potential testimonial conflict among putative class members
creates such "substantial" intra-class "antagonism" as to require denial of
class certification. The Court of Appeal's opinion thus stands in sharp
contrast to other courts that have determined that such potential conflicts of
interest do not bar class certification unless they ripen into actual conflicts
l' Factually, Chipotle did not present any evidence on this conflict issue
until its final reply brief, filed just five days before the class certification
hearing, when five of the 17 managers who had previously submitted
declarations for Chipotle filed supplemental declarations stating that they
had on occasion delegated to crew me'mbers "on some shifts" the task of
telling others when to take breaks. See App. Vol. 9, 2083:4-8, 2096:4-7,
2103:4-7,2106:4-7,2111 :4-7; Petition for Rehearing at 9-11. Notably,
none of the 75 Chipotle crew members who had submitted declarations in
this case ever claimed to have moved in and out of a supervisory role, or to
have known about this supposed practice, or to have been denied a break by
another crew member serving as a "lead. Nor did Chipotle ever present any
evidence that any of the missed breaks reflected in its time records occurred
when a "lead employee" was supposedly in charge.
32

that cannot be cured through subclassing or modifying the class definition.

In Richmond, for example, defendant argued that there was an
inherent conflict because the class complaint included a claim for recission,
while some class members wanted their relationship with defendant to
continue. 29 Cal.3d at 476. This Court held that any disagreement among
class members as to the appropriate relief was insufficient to preclude class
certification, and the Court was "not prepared to deny class action status at
this time upon the prospect of a conflict which mayor may not arise in the
future. . .. [because to] rule otherWise would invite the kind of speculation
that went on in the trial court below." Id.J1.I
Here, there is no record evidence of any actual conflict of interest or
J1.I See also Aguiar, 144 Cal.App.4that 144, 147 (even if class members'
interests turned out at trial to be antagonistic, the solution would be to
create subclasses); Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325,
1334-35 (potential intra-class conflicts may be resolved through
subclassing); Nat'l Solar Owners' Assoc., 235 Cal.App.3d at 1285-86
(denying certification would be "too.drastic a remedy" since no actual
conflict had yet been established; later conflicts may be addressed through
subclassing or other procedures); id. at 1285, quoting Marshall v. Holiday
Magic (9th Cir. 1977) 550 F.2d 1173 (that "some of the plaintiffs may have
claims against each other does not detract from their identical legal and
factual claim against ... defendants" and does not constitute "substantial
conflict going to the subject matter of the lawsuit"); Blackwell v. Skywest
Airlines, Inc. (S.D. Cal. 2007) 245 F.R.D. 453, 464-65 (rejecting
defendant's argument that plaintiff could not represent supervisors "because
she accuses them of denying her requests for meal periods" and the
"supervisors will testify against her with res'pect to her claim for missed
meal periods").
33

actual antagonism among putative class members. Chipotle did not even
identify which class members served as "leads" or when, let alone which
were on duty when Chiptotle's time records show missed breaks.
Moreover, from a liability perspective, it makes no difference which person
with supervisorial responsibility failed to send a crew member on break
because, under California law, responsibility for failing to provide legally
mandated breaks rests with the employer.
w
For these reasons, the Court of Appeal's conclusion that a potential,
testimonial conflict among class members "demonstrated antagonism of so
substantial a degree as to defeat the purpose of class certification" conflicts
with every other decision to address this issue. If allowed to stand, that
rationale could be used to defeat class certification in almost any
employment class action on the basis that a small, unidentified number of
prospective class members, at some unidentified time, might have had some
involvement in the challenged employer practices. Review should be
lit As this Court recently held in Martinez v. Combs (2010) 49 Ca1.4th 35,
the obligations of an "employer" under California labor law do not extend
to rank-and-file workers who are asked on a fill-in basis to implement
company policies that, in practice and as a matter of company policy their
managers and the company itself remain ultimately responsible for
enforcing. 49 Ca1.4th at 68, 75 (citing Reynolds v. Bement (2005) 36 Ca1.4th
1075,1086 as "properly hold[ing] that the IWC's definition of 'employer'
does not impose liability on individual corporate agents acting within th,e
scope of their agency").
34

granted to resolve this appellate conflict as well, so the Court can explain
why such potential testimonial conflicts are not sufficient to require the
denial of class certification.
CONCLUSION
The Court should grant review of this case and, at aminimum, defer
further briefing pending disposition of Brinker pursuant to Rule of Court
8S12(d)(2). In the alternative, the Court should order plenary review
pursuant to Rule 8.512 (or at a minimum remand with instructions pursuant
to Rule 8.528(d)), because the Court of Appeal's newly published opinion
raises important and unsettled issues regarding class certification and trial
of meal and rest break claims that will persist regardless of the outcome in
Brinker, and conflicts with other appellate decisions with respect
to the use of time records in employment litigation and the types of intra-
class conflicts that may affect the class certification decision.

Dated: December 7, 2010

. I
By:
35
Respectfully submitted,
ALTSHULER BERZON LLP
RASTEG & TERN

CERTIFICATE OF WORD COUNT

I hereby certify pursuant to Rule 8.504(d)(l) of the California Rules
of Court that this Petition for Review is proportionally spaced, has a
typeface of 13 points or more, and contains 8,222 words, excluding the
cover, tables, signature block, and this certificate, which is less than the
number of words pem'iitted by the Rules of Court. Counsel relies on the
word count of the word processing program used to pre are this brief.
Dated: December 7, 2010
lch el Rubin
Attorney for Plaintiff-Petitioner
Rogelio Hernandez
36

PROOF OF SERVICE
CASE NAME: Hernandez v. Chipotle Mexican Grill, Inc.
COURT OF APPEAL CASE NO.: B216004"
I am employed in the City and County of San Francisco, California.
I am over the age of eighteen years and not aparty to the within action; my
business address is 177 Post Street, Suite 300, San Francisco, California
94108. On December 7,2010, I served the following document(s):
. PETITION FOR REVIEW
on the parties by placing true copies thereof in sealed envelopes addressed
as shown below for service as designated below:

A)
B)
By United Parcel Service: I am readily familiar with the
practice of Altshuler Berzon LLP for the collection of
overnight courier deliveries and I caused each such envelope
to be delivered to the United Parcel Service at San Francisco,
California, with whom we have a direct billing account, to be
delivered to the office of the addressee on the next business
day.
By First Class Mail: I am readily familiar with the practice of
Altshuler Berzon LLP for the collection and processing of
correspondence for mailing with the United States Postal
Service. I caused each such envelope, with first-class postage
thereon fully prepaid, to be deposited in a recognized place of
deposit of the U.S. Mail in San Francisco, California, for
collection and mailing to the office of the addressee on the
date shown herein.
37

Type of Service Addressee Party

A Clerk of the Court Court of Appeal
State of California Court of Appeal
Second Appellate District, Div. 8
Ronald Reagan State Building
300 S. Spring St., 2
nd
Floor
Los Angeles, CA 90013
A Clerk of the Court Superior Court
Superior Court of Los Angeles
Central District
Stanley Mosk Courthouse
III N. Hill St., Dept. 14
Los Angeles, CA 90012
B Richard 1. Simmons Counsel for
Sheppard, Mullin, Richter & Defendant
Hampton LLP
333 South Hope Street, 43rd Floor
Los Angeles, CA 90071
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed this 7th day of
December 2010, at San Francisco, c a l i f o m i ~ ........---==::
Laurel Kapros
,38

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Filed 9/30/10; pub. & mod. order 10/28/10 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT

ROGELIO HERNANDEZ,
Plaintiff and Appellant,
v.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant and Respondent.
B216004
(Los Angeles County
Super. Ct. No. BC373759)

APPEAL fromthe judgment of the Superior Court of Los Angeles Colinty.

Terry A. Green, Judge. Affirmed.
Altshuler Berzon; Michael Rubin, James M. Finberg, Eve Cervantez,
Danielle E. Leonard; Rastegar & Matern, Matthew J. Matern and Douglas W. Perlman
for Plaintiff and Appellant.
"\ Sheppard, Mullin, Richter & Hampton, Richard J. Simmons and Geoffrey D.
DeBoskey for Defendant and Respondent.

INTRODUCTION
Plaintiff and appellant Rogelio Hernandez (Hernandez) appeals from the order
denying his motion for class certification and granting the motion to deny class
certification of defendant and respondent Chipotle Mexican Grill, Inc. (Chipotle). We
hold that the trial court did not abuse its discretion and affinn. In doing so, we
conclude that employers must provide employees with breaks, but need not ensure
employees take breaks.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual background
Chipotle is a fast food restaurant chain, currently employing about 3,000 hourly
employees in its approximately 130 California restaurants. All Chipotle employees are
nonexempt, hourly workers entitled to overtime compensation when earned, including
managers, except for the salaried position of "restaurateur." Each Chipotle restaurant
is managed byeither a restaurateur or a general manager. Some employees move in
and out of supervisory roles. For example, employees may be responsible for
scheduling meal and rest breaks on some shifts and weeks, but not on others. The
average Chipotle employee earns $8.37 per hour. The number of employees at each
Chipotle restaurant varies from 18 to 40. Also, staffing patterns and work shift lengths
. l
vary from restaurant to restaurant, season to season, and day to day, as do the busy
periods.
Chipotle's corporate headquarters establishes employment policies for its
restaurants. Chipotle's written policies require managers to provide employees with
meal and rest breaks. Managers are to determine when, or if, employees are permitted
to take breaks. Employees are not permitted to self-initiate breaks and are prohibited
from skipping breaks. Chipotle mandates employees take one uninterrupted 30-minute
meal break if they work over five hours, and two 30-minute meal breaks if they work
more than 10 hours. Managers are to provide employees with a 10-minute rest break if
they work three and one-half hours or more. If employees work more than six hours a
day, they are to take two paid rest breaks of at least 10 minutes each.
2

II

Chipotle directs employees to record their breaks. Chipotle pays employees for
the time they take for breaks even though they are relieved of duty and free to leave
the restaurant, so there is no financial incentive for employees to record all breaks
accurately. Chipotle provides free food and beverages to encourage employees to take
their meal breaks and provides comfortable break facilities. Paying for meal periods
and providing free food is part of Chipotle's culture and helps Chipotle recruit and
.retain employees.
Hernandez worked in the Chipotle Manhattan Beach restaurant from February
2002 until it closed in May 2003. Soon thereafter, he worked in the Hawthorne
restaurant, where he remained until ChipotIe terminated his employment in July 2006.
During his employment, Hernandez was an hourly worker.
2. Procedure
a. The operative complaint
Hernandez filed this lawsuit against Chipotle on his behalf and on behalf of a
proposed class of similarly situated nonmanagerial employees. Hernandez alleged
Chipotle violated labor hlws by denying employees meal and rest breaks.
b. Chipotle's motion to decertify the class
Chipotle moved to deny class certification and strike the class allegations.
Chipotle contended it had met its responsibility under Californialaw to provide
(authorize and permit) employees with meal and rest breaks.
Chipotle submitted 57 declarations from employees who attested that they had
received all meal and rest breaks. The employees further declared that some
employees occasionally had forgotten to record breaks, or had recorded them
inaccurately. Chipotle submitted 16 manager declarations in which the managers
declared the following: Employees received meal and rest breaks in compliance with
state law. Management did not allow employees to return early from breaks. Because
Chipotle paid for breaks, employees did not always remember to clock in and out
when going on a break. When employees forgot to clock in and out at the beginning
or end of their shifts, management instructed the employees to notify their manager,
3

who then corrected the records. But Chipotle instructed its managers not to correct
time records if an employee forgot to clock in and out for meal and rest breaks or if
they made a mistake in doing so, because their pay would not be affected.
Nonetheless, some managers edited employees' time records to record meal and rest
breaks when an employee forgot to clock in or out.
Chipotle also submitted the declaration of Human Resource Director Brian
Brown, who explained Chipotle's organization and methods of operation. He declared
in part: "Because crew members are paid for meal and rest breaks, they do not have a
financial incentive to record their breaks aCl:urately and occasionally fail to do so.
Some crew members simply forget to clock in or out or to record their breaks. . .. [I]f
a crew member records the start of a meal break and forgets to record the time it ends,
the meal break is still fully paid. As a result, the records do not always indicate that
. meal periods are taken, even when they are provided. They also do not indicate the
reason why breaks are not recorded, even when they are provided and made
available. "
c. Hernandez's motion to certify the class
About two weeks after Chipotle filed its motion, Hernandez moved for class
certification. Hernandez estimated that the class consisted of thousands of current and
former employees who worked millions of shifts for Chipotle beginning in July 2003.
The proposed class excluded those individuals in managerial positions. Hernandez
conceded that California employers need only provide employees with rest breaks.
However, Hernandez cited Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th
949 to support his theory that California employers were obligated to ensure
employees took meal breaks.
Hernandez submitted a compilation of his time records. He also submitted
excerpts from his deposition in which he testified to the following: While employed
by Chipotle in Manhattan Beach, he always received his meal and rest breaks, except
on one occasion. However, when he worked in Hawthorne, managers interrupted his
meal breaks two to three times a w ~ e k .
4

Hernandez additionally submitted declarations from a total of 23

nonmanagement, hourly employees who worked at Chipotle restaurants in California.
The employees declared that sometimes their managers denied or interrupted their
breaks, in varying degrees.
Pursuant to court order, Chipotle served a computerized spreadsheet with
statistics relating to employee time records. Thereafter, Hernandez filed a
supplemental expert declaration from professor of statistics Richard Kakigi, Ph.D. He
had analyzed Chipotle's clock-in and clock-out data from July 1,2003 through
February 9, 2009, for nonexempt employees, "excluding employees who exclusively
occupied any of the five management positions for the entire class period." (Fn.
omitted, italics added.). Professor Kakigi concluded as follows: Ninety-two percent
of the employees had missed at least one meal break. On average, each employee
missed meal breaks on 20.5% of his or her workdays. "All stores (100%) had at least
one missed meal break. On average, each employee had a missed meal break on
20.5% of his or her workdays." Eighty-eight percent of employees had at least one
missed rest break, and on average each employee had a missed rest break on 13.0% of
his or her workdays. All stores (l00 %) had at least one missed rest break, and on
average each store had a missed rest break on 13.0% of its employee workdays.
1
In
reaching his conclusions, Dr. Kakigi Classified as missed meal breaks instances where
the records did not reflect any break period, as well as instances where an employee
had taken a meal break of less than 30 minutes. He classified breaks of 30 minutes or
longer as meal breaks and breaks 10 to 29 minutes long as rest breaks.
In response, Chipotle argued the professor's conclusions had no value because
(1) he counted as a missed break any employee who refused to take a break, as well as
those who might have reported back to work one minute early; (2) the ~ m p l o y e e
1 Thus, out of2,074,451 shifts, 424,341 shifts (or 20.5%) did not contain time
punches for a meal break of 30 minutes or longer. Of those employee shifts, there"
were 270,245 workdays that did not contain time punches for a rest break within the
first four hours of 10 minutes or longer, for a total of 13%.
5

records included those who worked occasionally as managers, thereby creating an

inherent conflict of interest among putative class members; (3) the records did not
establish a universal poliCy or practice as they demonstrated that on the "vast majority
of workdays and for the vast majority of employees, meal periods were taken"; and (4)
the records did not establish why breaks were not taken or were too short.
d. The trial court's ruling on the motion to decertify and the
motion to certify
After a lengthy hearing, the trial court issued a comprehensive written ruling.
The court found Hernandez had established the factors of numerosity, ascertainability
of the class, typicality of Hernandez's claims, and adequacy of Hernandez and his
counsel as representatives. However, the court denied certification on the grounds that
individual issues predominated over common issues, and class treatment was not
superior to individual actions.
The trial court held that with regard to rest breaks, as conceded by Hernandez,
employers need only authorize and permit such breaks, which means to make them
, available. The trial court recognized that the California Supreme Court had granted
review of two cases to decide whether California law required employers to ensure
employees take meal breaks, or if the proper standard was that employers need only
provide employees with the opportunity to take such breaks.
2
The trial court
concluded the Supreme Court likely was to decide California employers were required
to provide employees with the ability to take breaks, not to ensure breaks be taken.
The trial court further ruled that although there were common questions regarding
whether Chipotle's policy was to provide breaks, whether employees "missed or
received shorten[ed] meal and rest breaks[,] and whether such constituted an unfair
business practice, these questions do not predominate." The trial court stated that if
2 The two cases presently before the Supreme Court (Brinker Restaurant v. S. c.,
review granted Oct. 22, 2008, S166350, and Brinkley v. Public Storage, review
granted Jan. 14,2009, S168806) will address the "proper interpretation of California
statutes and regulations governing an employer's duty to provide meal and rest breaks
to hourly workers."
6

the Supreme Court held employers had to ensure employees take breaks, class action
treatment of this case would be appropriate.
The trial court found that class adjudication of the wage and hour break claims
was not manageable, nor would it provide a substantial benefit to the court or parties.
Rather, individual inquiry was "required to determine if [Chipotle] is liable for
denying proper meal and rest breaks to each of its thousands of employees." Further,
adjudication of these individual issues rendered classwide adjudication unmanageable
because, even if an employee's time record indicated a break was missed, that in and
of itself did not establish that Chipotle failed to provide, authorize or permit the
employee to take a meal or rest break. Additionally, Hernandez failed to present a
clear outline of how the court and parties could use a sampling of testimony to address
all of the individual questions that had to be answered.
DISCUSSION
1. Class actions and the standard of review
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 ...." (See also
Cal. Rules ofCt., rule 3.760 et seq.) Class certification requires the party seeking
certification to prove "( 1) ... a sufficiently numerous, ascertainable class, (2) ... a
well-defined community of interest, and (3) that certification will provide substantial
benefits to litigants and the courts, i.e., that proceeding as a class is superior to other
methods. [Citations.] In tum, 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.' [Citation.]" (Fireside Bank v. Superior Court (2007)
40 Ca1.4th 1069, 1089 (Fireside Bank), citing among others, Code C.iv. Proc., 382 &
Sav-On !?rug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,326 (Sav-On Drug
Stores).)
7

"A class action may be maintained even if each member must individually
show eligibility for recovery or the amount of damages. But a class action will not be
permitted if each member is required to 'litigate substantial and numerous factually
unique questions' before a recovery may be allowed. [Citations.] ... '[I]fa class
action "will splinter "into individual trials," common questions do not predominate and
litigation of the action in the class format is inappropriate. [Citation.]' [Citations.]"
(Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.AppAth 723, 732 [order denying
certification on misclassification allegations affirmed where trial court found tasks
performed by restaurant managers, and time devoted to each task varied widely from
restaurant to restaurant].)
A ruling on certification is reviewed for abuse of discretion. (Sav-On Drug
Stores, supra, 34 Ca1.4th at p. 326.) "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. The denial of certification to an
entire class is an appealable order [citations], but in the absence of other error, 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]. 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.'" [Citations.]" (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429,435-436 (Linder); accord, Sav-On Drug Stores, supra, atpp.
326-327.)
Thus, "[t]he appeal of an order denying class certification presents an exception
to the general rule that a reviewing' court will look to the trial court's result, not its
rationale. If the trial court failed to follow the correct legal analysis when deciding
whether to certify a class action, 'an appellate court is required to reverse an order
denying class certification ... , "even though there may be substantial evidence to
support the court's order." , [Citations.] In other words, we review only the reasons
given by the trial court for denial of class certification, and ignore any other grounds
8
2.

that might support denial." (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th
. 816, 828-829.) " '[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.' ", [Citations.]" (Sav-On Drug Stores, supra, 34 Ca1.4th at p: 328.)
Employers need only provide employees with breaks.
The trial court first held that California law requires that employers provide, but
not ensure, employees take meal and rest breaks. Since we must ascertain if the trial
court's ruling was based upon an erroneous legal analysis (Linder, supra, 23 Ca1.4th at
pp. 435-436), we tum to this legal issue.
a. The trial court's legal analysis was correct.
Labor Code section 226.7, subdivision (a) states: "No employer shall require
any employee to work during any meal or rest period mandated by an applicable order
of the Industrial Welfare Commission." Labor Code section 512, subdivision (a)
states that employers must provide employees with meal periods of not less than30
minutes if they work shifts of more than five hours per day and a second 30-minute
meal break if they work shifts longer than 10 hours per day.3
"[T]he Industrial Welfare Commission (IWC) 'is ... empowered to formulate
regulations (known as wage orders) governing employment in the State of
California[.]' " (Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524,
1534, citing Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557,561-
3 Labor Code section 512, subdivision (a) states: "An employer may not employ
an employee for a work period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes, except that if the total work
period per day of the employee is no more than six hours, the meal period may be
waived by mutual consent of both the employer and employee. An employer may not
employ an employee for a work period of more than 10 hours per day without
providing the employee with a second meal period of not less than 30 minutes, except
that if the total hours worked is no more than 12 hours, the second meal period may be
waived by mutual consent of the employer and the employee only if the first meal
period was not waived." (Italics added.)
9

562.) Labor Code section 516 specifically authorizes the IWC to "adopt or amend
working condition orders with respect to break periods, meal periods, and days of rest
for any workers in California consistent with the health and welfare of those workers."
IWC's wage orders are codified in the California Code of Regulations. (E.g., Sav-On
Drug Stores, supra, 34 Cal.4th at p. 324; Ghazaryan, supra, at p. 1534.)
Wage Order 5-2001, which governs restaurant workers like the Chipotle
employees, echoes the language of Labor Code section 512. It requires employers to
provide employees with a meal period of not less than 30 minutes for a work period of
more than five hours. (Cal. Code Regs., tit. 8, 11050, subd. 11.)4 Similarly, Wage
Order 5-2001 states that employers are to authorize andpermit employees to take a
10-minute rest break for every four hours worked. (Cal. Code Regs., tit. 8, 11050,
subd. 12.)5 California employers are required to keep accurate records of meal, but
4 California Code of Regulations, title 8, section 11050, subdivision 11 states in
pertinent part: "Meal Periods [ ~ ] (A) No employer shall employ any person for a
work period of more than five (5) hours without a meal period of not less than 30
minutes, except that when a work period of not more than six (6) hours will complete
the day's work the meal period may be waived by mutual consent of the employer and
the employee. . .. [ ~ (B) If an employer fails to provide an employee a meal period
in accordance with the applicable provisions of this order, the employer shall pay the
employee one (1) hour of pay at the employee's regular rate of compensation for each
workday that the meal period is not provided." (Italics added.) .
5 California Code of Regulations, title 8, section 11050, subdivision 12 states in
part: "Rest Periods [ ~ (A) Every employer shall authorize andpermit all employees
to take rest periods, which insofar as practicable shall be in the middle of each work
period. The authorized rest period time shall be based on the total hours worked daily
at the rate often (10) minutes net rest time per four (4) hours ormajor fraction thereof.
However, a rest period need not be authorized for employees whose total daily work
time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be
counted, as hours worked, for which there shall be no deduction from wages. [ ~ (B)
If an employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1) hour
of pay at the employee's regular rate of compensation for each workday that the rest
period is not provided." (Italics added.)
10

not rest, breaks. (Cal. Code Regs., tit. 8, 11050, subd. 7; cf. Franco v. Athens
. Disposal Co., Inc. (2009) 171 Cal.AppAth 1277, 1299.)
Hernandez admits employers must provide, i.e., authorize andpermit,
employees to take rest breaks, but contends a different standard applies to meal breaks
and thus, the trial court's legal analysis was faulty. This contention is not persuasive.
"The California Supreme Court has described the interest protected by meal break
provisions, stating that '[a]n employee forced to forgo his or her meal period ... has
been deprived of the right to be free of the employer's control during the meal period.'
Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1104 (2007). It is an
employer's obligation to ensure that its employees are free from its control for thirty
minutes, not to ensure that the employees do any particular thing during that time.
Indeed, in characterizing violations of California meal period obligations in Murphy,
the California Supreme Court repeatedly described it as an obligation not to force
employees to work through breaks. [Citation.]" (Brown v. Federal Express Corp.
(C.D.Cal. 2008) 249 F.R.D. 580, 585, fn. omitted.)
Consistent with the purpose of requiring employers to provide employees with
meal breaks, the Labor Code and the IWC use mandatory language (e.g., Lab. Code,
226.7, subd. (a) ["No employer shall require any employee to work during any meal or
rest period ..."D precluding employers from pressuring employees to skip breaks,
declining to schedule breaks, or establishing a work environment discouraging or
preventing employees from taking such breaks. The mandatory language does not
mean employers must ensure employees take meal breaks. Our interpretation of the
meal break requirement is supported by the definition of the word "provide" as used in
Labor Code sections 226.7, subdivision (b), and 512, subdivision (a), as well as
California Code of Regulations, title 8, section 11050, subdivisions 11 and 12. (See
fn. 4 & fn. 5, ante.) "Provide" meaps "to supply or make available." (Webster's
Ninth Collegiate Dictionary (1986) p. 948.)
Hernandez relies on Cicairos v. Summit Logistics, Inc., supra, 133 Cal.AppAth
949 (Cicairos) to argue employers must ensure meal breaks are taken. In Cicairos, an
11

employer did not schedule meal breaks for its truck driver employees, established a
system whereby drivers were pressured to make a certain number of trips during a
work day, had a monitoring system to track drivers, and did not include a code for rest
stops in its computer system. (Id. at p. 962.) These and other aspects of the work
environment effectively deprived drivers of an opportunity to take breaks. In
reversing a summary judgment granted to the employer with regard to meal break
claims, the appellate court relied upon a January 28, 2002 opinion letter from the
Division of Labor Standards Enforcement (DLSE). Cicairos stated, "Under the facts
presented ... the [employer's] obligation to provide the plaintiffs with an adequate
meal period is not satisfied by assuming that the meal periods were taken, because
employers have 'an affirmative obligation to ensure that workers are actually relieved
of all duty.' (Dept. of Industrial Relations, DLSE, Opinion Letter No. 2002.01.28
(Jan. 28,2002) p. 1.)" (Cicairos, supra, at pp. 962-963.) With regard to rest breaks,
Cicairos held "the [employer] could ... be liable if the plaintiffs did not take their full
lO-minute rest breaks because, as a practical matter, the defendant did not permit the
plaintiffs to take their rest breaks. (See Cal. Code Regs., tit. 8, 11090, subd. 12(A)
[employer must authorize andpermit resfperiod].) ... [ ~ ] The defendant has not
proven it supplied the plaintiffs with their rest periods; therefore, summary judgment
was improper." (Cicairos, supra, at p. 963.)6
Cicairos does not assist Hernandez. The DLSE has withdrawn the opinion
letter upon which Cicairos based its analysis. (Dept. of Industrial Relations, DLSE,
Opinion Letter (October 23,2008) ["Court Rulings on Meal Periods"].) -(2AA263)-
In doing so, the Division stated: "Taken together, the language of the statute and the
regulation, and the cases interpreting them demonstrates compelling support for the
position that employers must provide meal periods to employees but do not have an
additional obligation to ensure that such meal periods are actually taken." (Dept. of
6 Cicairos concerned Wage Order 9-2001 (Cal. Code Regs., tit. 8, 11090)
covering workers in the transportation industry, but the pertinent wage order
provisions are materially similar.
12

e'

Industrial Relations, DLSE, Opinion Letter (October 23,2008) at p. 2.) Further,

Cicairos's conclusion relating to meal breaks did not depend upon an "ensure"
standard. Rather, the facts in Cicairos were such that the employer's business
practices effectively deprived employees of the ability to take meal breaks.rJDept. of
Industrial Relations, DLSE, Opinion Letter (October 23,2008) at p. 5.)
Hernandez's position also is not practical. "Requiring enforcement of meal
breaks would place an undue burden on employers whose employees are numerous or
who ... do not appear to remain in contact with the employer during the day. See
White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088-89 (N.D.Cal.2007). It would
also create perverse incentives, encouraging employees to violate company meal break
policy in order to receive extra compensation under California wage and hour laws.
[Citation.]" (Brown v. Federal Express Corp., supra, 249 F.R.D. at p. 585.) Thus,
although the Supreme Court has yet to decide the issue, we hold that the trial court
used the correct legal analysis with regard to meal breaks.
b. The trial court was not foreclosed from addressing the legal issue.
Citing Linder, supra, 23 Cal.4th 439, 'Hernandez argues the trial court should
not have addressed whether employers must provide meal breaks rather than ensure
they be taken because a certification issue is "essentially a procedural one that does not
ask whether an action is legally or factually meritorious." (Id. at pp. 439-440; accord,
Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.)
However, neither Linder nor other Supreme Court authoritY forecloses courts
from examining a legal issue in addressing certification. "[Linder] said only that a
plaintiff need not establish a likelihood of success on the merits in order to obtain class
certification. It does not follow that, in determining whether the criteria of Code of
Civil Procedure section 382 are met, a trial or appellate court is precluded from
considering how various claims and defenses relate and may affect the course of the
litigation, considerations that may overlap the case's merits. [Citation.] ... Linder . ..
expressly recognized that 'whether the claims or defenses of the representative
plaintiffs are typical of class claims or defenses' was an issue that might necessarily be
13

intertwined with the merits of the case, but which a court certification
necessarily could and should consider. [Citations.]" (Fireside Bank, supra, 40 Ca1.4th
at pp. 1091-1092; Washington Mutual Bank v. Superior Court (2001) 24 Ca1.4th 906
[choice of law issue had to be resolved certification of nationwide class was
addressed as it was key to predominance and manageability]; Walsh v. IKON Office
Solutions, Inc. (2007) 148 Cal.AppAth 1440, 1450 [affirmative defenses may be
considered to defeat certification]; contra, Medrazo v. Honda ofNorth Hollywood
(2008) 166 Cal.AppAth 89, 97-98.)
Hernandez also points to Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th
1286 (Jaimez) to'support his argument that the trial court should not have examined
the provide versus ensure legal issue. In Jaimez, Division One of this district reversed
the denial of class certification in a case that, like Cicairos, involved employees who
were on the road most of the day or at customers' places of business. Jaimez found it
unnecessary to decide whether employers need only "provide" meal breaks and not
ensure employees take them. (Jaimez, supra, at pp. 1303-1304.) The declarations
established there were predominant common factual issues whether the employees
missed meal breaks because of the employer's practice of designating delivery
schedules and routes that made it impossible for employees to both take their breaks
and complete their deliveries on time. (Id. at pp. 1300-1301.) Before 2006, the
employer had a practice of deducting 30 minutes per shift for meal breaks even if no
break was taken, and after 2006, employees had to sign a manifest indicating they took
a mealbreak, regardless of whether they took the break, in order to get paid. (Id. at p.
1304.) Since the employer's practices presented the predominant common factual
issues on the meal and rest break claims, Jaimez did not have to consider whether the
employer violated a duty to provide or to ensure breaks. Jaimez does not hold that in
every wage-and-hour case, even those presenting entirely different factual issues,
courts may not consider the merits of a legal issue in order to rule on class
certification. The trial court appropriately decided the threshold legal issue as it could
not otherwise assess whether class treatment was warranted.
14

3. The trial court did not abuse its discretion in denying certification.
a. There is substantial evidence supporting the trial court's ruling
that individual issues predominate.
The declarations and depositions of putative class members showed Chipotle
did not have a universal practice with regard to breaks. Some employees declared they
always missed meal breaks; some declared they received meal breaks, but not rest
breaks; one declared his meal and rest breaks were combined; Some did not declare
they were denied meal breaks; and others declared their breaks were delayed.
Employees declared their meal breaks w ~ r e interrupted with varying degrees of
frequency, as demonstrated by one employee who declared he was frequently denied
his first rest break, but always denied his second break. In the 73 declarations
provided by Chipotle, employees declared they had always been provided breaks.
Hernandez himself admitted that except for one occasion, managers in the Manhattan
Beach restaurant always provided him with an opportunity to take his breaks, but
managers in the Hawthorne restaurant denied him meal breaks two or three times a
week.
The evidence before the trial court suggested that in order to prove Chipotle
violated break laws, Hernandez would have to present an analysis restaurant-by-
restaurant, and perhaps supervisor-by-supervisor. Given the variances in the
declarations, Hernandez did not demonstrate a common practice or policy. (E.g., Ali v.
U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1350 ["When variations in proof of
harm require individualized evidence, the requisite community of interest is missing
and class certification is improper"]; compare with Bujil v. Dollar Financial Group,
Inc. (2008) 162 Cal.App.4th 1193 [certification appropriate where there were
allegations employer had policy of prohibiting certain employees from taking breaks].)
Even if Chipotle managers directed when employees could take breaks, there was
substantial evidence that Chipotle's supervisory personnel did not uniformly handle
breaks. The only evidence of a company-wide policy andpractice was Chipotle's
. evidence that it provided employees with meal and rest breaks as required by law.
15
b.

The time records do not demonstrate Hernandez can prove

on a classwide basis that Chipotle failed to provide employees
with breaks.
Hernandez argues he can prove Chipotle has not provided meal and rest breaks
by using employee time records that show employees did not clock in and out for meal
and rest breaks. However, there is substantial evidence the time records may be
unreliable, because Chipotle paid employees for breaks and, thus, employees lacked an
incentive to clock in and out, and many did not do so. Chipotle instructed managers
not to correct erroneous time records of meal and rest breaks since ChipotIe paid
employees for breaks, so there was no benefit gained by such time-record corrections.
A trier of fact will have to ascertain if Chipotle employees actually missed breaks, or
simply forgot to record them, as well as the reason why employees might have missed
breaks or went back to work before completing them. In light of the size.of the
proposed class, there could be thousands of mini-trials to address the factUal issues,
supporting the trial court's conclusion that class treatment is not superior to individual
lawsuits. (Kenny v. Supercuts, Inc. (N.D.Cai. 2008) 252 F.R.D. 641,646 [class
allegations that employer failed to provide meal breaks; disparity in employees' time
records showed individual inquiry required].)7
7 Hernandez also argues Chipotle cannot rely upon the inaccuracy of its own
records to defeat certification because Chipotle was required to keep accurate records
of all meal breaks taken. (Cal. Code Regs., tit. 8, 11050, subd. 7; Aguiar v. Cintas
Corp. No.2 (2006) 144 Cal.App.4th 121, 134-135 [employer who failed to keep
accurate records in wage and hour claim class action case had burden of proof where
employer permitted employees to work on many contracts and not just one at issue and
where required records would have permitted d e t e ~ i n a t i o n of subclasses]; Hernandez
v. Mendoza (1988) 199 Cal.App.3d 721 [in non-class action case, burden of producing
evidence shifted to employer where employer falsified records and failed to keep
accurate records of work performed].) First, we doubt this argument applies to rest
break claims, as employers are not obligated to keep records of rest 1:>reaks. (Cal. Code
Regs., tit. 8, 11050, subd. 7.) Further, here there was no evidence Chipotle falsified
records or purposefully failed to keep records. Certification of a class is not required
simply because an employer's records of meal and rest breaks are not 100 percent
accurate.
16

c. Hernandez's evidence does not undermine the trial court's ruling.

In the trial court, Hernandez pointed to Professor Kakigi's analysis to suggest
certification was appropriate because sampling oftestimony and expert analysis would
prove the case. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 333 & fn. 6.) The trial
court correctly concluded that introducing evidence by the use of a sampling of
employee testimony was not manageable. "It is not sufficient ... simply to mention a
procedural tool; the party seeking class certification must explain how the procedure
. .
will effectively manage the issues in question." (Dunbar v. Albertson's, Inc. (2006)
141 Cal.App.4th 1422, 1432.)
Professor Kakigi did not show a sampling of testimony would simplify a trial.
He found that 92 percent ofChipotle's employees missed at least one meal break. We
have already noted there are reasons to doubt whether the time records on which his
analysis was based are reliable proof of missed breaks. As the trial court noted, "What
percentage of the 92% have innocent explanations? If, for example, 75% of the 92%
have innocent explanations for the missed break, it would not be rational to allow each
side the same number of 'samples' to put forth at trial. The Court must know this
percentage in order to determine how many samples to allocate to each party. A
census on the 92% of employees is required."
Additionally, Professor Kakigi premised his conclusions on the erroneous legal
standard that Chipotle had to ensure employees took breaks. He assumed a break was
missed if an employee clocked back in one minute early from a break, without
accounting for why that occurred. As a practical matter, employees may have
voluntarily chosen to return to work early. There was evidence some employees
occasionally forgot to record their breaks and sometimes they recorded breaks
inaccurately. Even if the employee records showed an employee did not take a break
at all, the reason for that "missed" break must be ascertained, because, for example, if
that employee willingly decided to forgo a break, there was no unlawful conduct.
Further, the professor's conclusions did not demonstrate Chipotle had a practice
of denying breaks. Professor Kakigi stated that 92 percent of employees missed a
17

break and all restaurants showed missed breaks. However, Professor Kakigi did not
demonstrate a pattern or practice of missed breaks, for example, with evidence that
missed breaks occurred more frequently at certain times, in specific restaurants, during
certain seasons or shifts; nor did he offer any explanation why some employees at the
same restaurant had different experiences.
d. There is substantial evidence of conflicts of interest among the
putative class members.
The last reason provided by the court to deny certification was that members of
. the putative class had conflicts of interests. There was substantial evidence that some
employees move in and out of supervisory roles with the responsibility to provide
meal and rest breaks for themselves and other employees oIl: the shift, without a
change of title or other indicia of managerial status. Therefore, some putative class
members may accuse other putative class members of violating their m ~ a l and rest
period rights. The trial court did not abuse its discretion in concluding the likelihood
that some class members might testify against other class members demonstrated
antagonism of so substantial a degree as to defeat the purpose of class certification.
(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 472).
DISPOSITION
Because there is substantial evidence to support the trial court's discretionary
ruling, we affirm the order denying certification. Chipotle is awarded costs on appeal.
GRIMES, J.
We Concur:

FLIER, ACTING P. J. O'CONNELL, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
18

Filed 10/28/10
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
. SECOND APPELLATE DISTRICT
DIVISION EIGHT

ROGELIO HERNANDEZ,
Plaintiff and Appellant,
v.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant and Respondent.
THE COURT:
B216004
(Super. Ct. No. BC373759)
ORDER MODIFYING OPINION,
CERTIFYING FOR PUBLICATION,
AND DENYING PETITION FOR
REHEARING
[NOCHANGE IN JUDGMENT]

The opinion filed on September 30,2010, is modified as follows:

On page 4, the first full paragraph in its entirety is replaced with the following
modified paragraph:
ChipotIe also submitted the declaration of Human Resource
Director Brian Brown, who explained Chipotle's organization and
methods of operation. He declared in part: "Because crew members are
paid for meal and rest breaks, they do not have a financial incentive to
record their breaks accurately and occasionally fail to do so. . .. [I]f a
crew member records the start of a meal break and forgets to record the
time it ends, the meal break is still fully paid." Several Chipotle crew
members and managers corroborated Mr. Brown's testimony that
employees do not always remember to "clock-out" before going on a
-_.-'

break. For example, David Pineda; the service manager at Chipotle's

Hawthorne location testified, "Although we emphasize that employees
should clock in and out for their meal and rest periods, I am aware that
some employees do not always do so. Because the company pays
employees for their meal and rest period time, employees do not always
think to clock-out before going on a break."

This modification effects no change in judgment.

The opinion filed on September 30, 2010, was not c e r t i f i ~ d for publication in
the Official Reports. For good cause the opinion, as modified, should now be
published in theOfficial Reports, and it is so ordered.
Appellant's petition for rehearing is denied.

FLIER, Acting P. J. GRIMES, J. O'CONNELL, 1. *

+
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 ofthe California Constitution.

~ ' : <
m
~ ,
><
::I:
~ ~ Cb
OJ
=t
OJ

" .
.'
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
.publication or ordered published. except as spe<ified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115. .
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
-1"
J.

ROGELIO HERNANDEZ,
Plaintiff and Appellant,
v.
CHIPOTLE MEXICAN GRlLL, INC.;
Defendant and Respondent.
B216004
(Los Angeles County
Super. Ct. No. BC373759)
COURT OF APPEAL SECOND D15T.
W I I l 1 ~ I Q )
SEP 302010
JOSEPHA. lANE ..Clerk

Deputy ClerK
APPEAL from the judgment of the Superior Court of Los Angeles County.
Terry A.Green, Judge. Affinned.
Altshuler Berzon, Michael Rubin, James M.Finberg, Eve Cervantez,
Danielle E. Leonard; Rastegar & Matern, Matthew J. Matern and Douglas W. Perlman
for Plaintiff and Appellant. .
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons and Geoffrey D.
DeBoskey for Defendant and Respondent.
* * ** * * * * **

.INTRODUCTION
Plaintiff and Rogelio Hernandez (Hernandez) appeals from the order
denying his motion for class certification and granting the motion to deny class
certification of defendant and respondent Chipotle Mexican Grill, Inc. (Chipotle). We
.hold that the trial court did not abuse its discretion and affirm. In doing so, we
.. conclude that employers must provide employees with breaks, but need not ensure
. .
employees take breaks.
FACTUAL AND PROCEDURAL BACKGROUND
Factual background
Chipotle is a fast fo<)d restaurant chain, currently employing about 3,000 hourly
.employees in its approximately 130 California restaurants. AIIChipotle employees are
nonexempt, hourly workers entitled to overtime compensation when earned, includfug
managers, for the salaried position of "restaurateur." Each Chipotle restaurant
.is managed by either a restaurateur or a general manager. Some employees move in
and out of supervisory roles. For example, employees may be responsible for
scheduling meal and rest breaks on some shifts and weeks, but not on others. The
average Chipotle employee earns $8.37 per hour. The number of employees at each
. . .
Chipotle restaurant varies frmn 18to 40. Also, staffing patterns and work shift lengths
vary from restaurant to restaurant, season to season, and day to day, as do the busy
periods.
Chipotle's corporate headquarters establishes employment policies for its
. . . . .
restaurants. Chipotle's written poliCies require managers to provide employees with
..
meal and rest breaks. Managers are to determine when, or if, employees are permitted
take breaks. Employees are not pennitted to self-initiate breaks and are.prohibited
fromskipping breaks. Chipotle mandates employees take one uninterrupted 30-minute
meal break if they work over five hours, and two 30-minute meal breaks ifthey work
more than 10 hours. Managers are to provide employees with a 1O-minute. rest break if
they work three and one:-half hours or more. If employees work more than six hours a
day, they are to take two paid rest breaks of at least 10 minutes each..
2

Chipotle directs. employees to record their breaks. Chipotle pays employees for
the time they take for breaks even though they are relieved of duty mid free to leave
the restaurant, so there is no financial incentive for employees to record all breaks
accurately. Chipotle provides free food and beverages to encourage employees to take
their meal breaks and provides comfortable break facilities. Paying for meal periods
and providing free food is part of Chipotle's culture and helps Chipotle recruit and
retain employees.
Hernandez worked in the Chipotle Manhattan Beach restaurant from February
2002 until it closed in May 2003. Soon thereafter, he worked in the Hawthorne
restaurant, where he remained until Chipotle terminated his employment in July 2006.
During hisem:ployment, Hernandez was an hourly worker.
2. Procedure .
a. The operative complaint
. Hernandez filed this lawsuit against Chipotle on his behalf and on behalf of a .
proposed Class of situated .nonmanagerial employees. Hernandez alleged
Chipotle violated labor laws by denying employees meal and rest breaks..
b. .Chipotle's motion to decertify the class
Chipotle moved to deny class certification and strike the class allegations.
Chipotle' contended it had met its responsibility under California lawto provide
(authoriie and permit) employees with meal and breaks.
Chipotle submitted 57 declarations from employees who attested that they had
received all meal and rest breaks. The employees further declared that some
employees occasionaI1y had forgotten to record breaks, or had recorded them
inaccurately. Chipotle submitted 16 manager declarations in which the managers .
declared the following: Employees received meal and rest breaks in compliance with
statelaw. 'Management did not allow employees to return early from breaks. BecauSe
Chipotle paid for breaks, employees did not always remember to clock in and out
when going on a break. When employees forgot to clock in and out at the beginning
or end of their shifts, management instructed the employees to notify their manager,
3

...
0._. C'
..

who then corrected the records. But Chipotle instructed its managers nQt to correct
time records if an employee forgot to clock in and out for meal and rest breaksorif
they made a mistake in doing so, because their pay would not be affected.
Nonetheless, some managers edited employees' time records to record meal and rest'
breaks when an employee forgot to clock in or out.
Chipotle also submitted the declaration of Human Resource Director Brian
Brown, who explained Chipotle's organization and methods of operation. He declared
in part: "Because crew members are paid for meal and rest breaks, they do not have a
.financial incentive to record their breaks accurately and occasionally fail to do so.
Some crew members simply forget to clock inor out or to record their breaks.... [I]f
a crew member records the start of a meal break and forgets to record the time it ends, .
the meal break is still fully paid. As a result, thereco:t;'ds do not always indicate that
meal periods are even when they are provided., They also do not indicate the
reason why breaks are not recorded, even when they are provided and made
available."
c. ' Hernandez's motion to certify the class
About two weeks after Chipotle filed its motion, Hernandez moved for class
" certification. Hernandez estimated that the class consisted of thousands of current and
former employees who worked millions of shifts for Chipotlebeginning in July 2003:
The proposed class excluded those individuals in managerial positions. Hernandez '
, conceded that employers need only provide employees with rest breaks.
However, Hernandez cited Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.AppAth
'949 to support his theory that California employers were obligated to ensure
employees took meal breaks.'
Hernandez submitted a compilation of his, time records. He also submitted
excerpts from his deposition in which he testifiedto the following: Whileemployed
by Chipotle in Manhattan Beach, he always received his meal and rest breaks, except
on one occasion. However, when he worked in Hawthorne, managers interrupted his "
meal breaks two to three times. a week.
4

Hernandez additionally declarations from a total of 23

nonmanagement, hourly employees who worked at Chipotle restaurants in California.
The employees declared that sometimes their managers denied or interrupted their
breaks, in varying degrees.
Pursuant to court order, Chipotle served a computerized spreadsheet with
statistics relating to employee time records. Thereafter, Hernandez filed a
supplemental expert declaration from professor of statistics Richard Kakigi, Ph.D. He
had analyzed Chipotle's clockin and clock-out data from July 1,2003 through
February 9,2009, for nonexempt employees, "excluding employees who exclusively
occupied any of the five management positions for the entire class period." (Fn.
omitted, itaHcs added} Professor Kakigi concluded as follows: Ninety-two percent
. of the employees had missed at least one meal break. On average, each employee
.missed meal breaks on 20.5% of his or her workdays. "All stores (100%) had atleast
one missed meal break. On average, each employee had a missed meal break on
20.5% of his or her workdays." Eighty-eight percent of employees had at least one
missed rest break, and on average each employee had a missed rest break on 13.0% of
.his or her workdays. ,All stores (100 %) had at least one missed rest break, and on
average each store had a missed rest break on 13.0% of its employee workdays. I In
. . .' . . .
reaching his Dr. Kakigi classified as missed meal breaks instances where
the records did not reflect any break period, as well as instances where an employee
. had taken a meal break of less than 30 minutes. He classified breaks of30 minutes or
longer as meal breaks and breaks 10 to 29 minutes long as rest breaks.
In response, Chipotle argued the professor's conclusions had no value because
(1) he counted as a missed break any employee who refused to take a break, as well as
those who might have reported back to work one minute early; (2) the employee
I Thus, out of 2,074,451 shifts, 424,341 shifts (or 20.5%) did not contain time
punches for a meal break of30 minutes or longer. Of those employee shifts, there
were 270,245 workdays that did not contain time punches for a rest break within the
first four hours of 10 minutes or longer, for a total of 13%.
5

f-:-' ..
r': ...
records included those who worked occasionally as managers, thereby creating an
inherent conflict of interest among putative class members; (3) the records did not
establish a universal policy or practice as they demonstrated that on the ''vast majority
of workdays and for the vast majority of employees, ineal periods were taken"; and (4)
the records did not establish why breaks were not taken or were too short
d. The trial court's ruling on the motion to decertify and the
motion to certify'
. After a lengthy hearing, the trial court issued a comprehensive written ruling.
The court found Hernandez had established the factors of numerosity, ascertainability .
of the class, 'typicality ofHernandez:s claims, and adequacy of Hernandez and his
. counsel as representatives. However, the court denied certification on the grounds that
individual issues predominated over common issues, and class treatment was not
.. superior to individual' actions.
The trial court held that with regard to rest breaks, as conceded by Hernandez,
employers need only authorize and permit such breaks, which means to make them
. .
available. The trial court recognized that the California Supreme Court had granted
. . .
review of two cases to decide whether California law required employers to ensure
. . .
. employees take meal breaks, or if the properstandard was that employers need only
- . . . .
provide employees with the opportunity to take such breaks.
2
The trial court
concludedthe SupremeCourt likely was to decide California employers were required
provide 'employees with the ability to.take breaks, not to ensure breaks be taken.
. The trial court further ruled that although there were common questions regarding
whether Chipotle's policy was to provide breaks, whether employees "missed or
received shorten[ed] meal and rest breaks[,] and whether such constituted an unfair
buSiness practice, these questions do not predominate:' The trial court stated that if
2 . The two cases presently before the Supreme Court Restaurant v. S' c.,
review granted Oct. 22, 2008, S166350, and Brinkley v. Public Storage, review
. . .
'. 14,2009, S168806) will address the "proper interpretation of California .
statutes andreguiatiolls governing an employer's duty to provide meal and rest breaks'
to hourly workers." .
6

the'Supreme Court held employers had to ensure employees take breaks, class action'
treatment of this case would be appropriate.
The trial court found that class adjudication of the wage and hour break claims
was not manageable, nor would it provide a substantial benefit to the court or parties.
Rather, individual inquiry was "required to determine if [Chipotle] is liable for
denying proper meal and rest breaks to each of its thousands of employees." Further,
adjudication ofthese individual issues rendered classwide adjudication unmanageable
because, even ifan employee's tim:e record indicated a break was missed, that'in and
of itselfdid not establish that Chipotle failed to provide, authorize or permit the
employee to ~ e a meal or rest break. Additionally, Hernandez failed to present a
Clear outline of how the court and parties could use a sampling of testimony to address
all of the individual questions that had to be answered.
DISCUSSION
Class actions and the standard of review
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 ..,.." (See also
.' . .
Cal. Rules of Ct., rule 3.760 et seq.) Class certification requires the party seeking'
certification to prove "(1) . ; . a sufficiently numerous, ascertainable Class, (2) ... a
, ,
well-defmed community of interest, and (3)' that certification will provide substantial'"
benefits to litigants and the courts, Le., that proceeding as a class is superior to other
methods" [Citations.] In tum, the 'community of interest requirement embodies three
. '. . .
factors: (1) predominant common questions oflaw or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who can ' '
adequately represent the class.' [Citation.]" (Fireside Bank v. Superior 'Court (2007)
40 Cal.4th" 1069, 1089 (Fireside Bank), citing among others, Code Civ. Proc., 382 &
Sav-On Drug Stores, Inc. v.. Superior Court (2004)34 Cal.4th 319,326 (Sav-On Drug
Stores).)
'7

"A class action may be maintained even if each member must individually
show eligibility for recovery or the amount of damages. But a class action will not be
permitted if each member is required to 'litigate substantial and numerous factually
unique questions' before a recovery may be [Citations.] ... '[I]f &class
action "will splinter intoindividu&l trials," common questions do not predominate and
litigation of the action in the class format is inappropriate. [Citation.]' [Citations.]"
(Arenas v. El Torito Restaurants, .Inc. (2010) 183 Cal.App.4th 723, 732 [order denying
certification on misclassification allegations affirmed where trial court found tasks
performed by restaurant managers, and time devoted to each task varied widely from
restaurant to restaurant].)
A ruling on certification is reviewed for abuse of discretion.. (Sav-On Drug
..
supra, 34 Cai.4th at p. 326.) "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. The denial of certification to an
entire class is an appealable order [citations], but in the absence of other error, a trial
court ruling supp()rted by substantial evidence generally will not be disturbed 'unless
(1) improper criteria were used[citation]; or (2) erroneous legal assumptions were
.. made [citation]' [citation]. Under this standard, an order based upon improper criteria
or incorrectassumptions calls for reversal ' "even though there may be substantial
evidence to support the court's order/' , [Citations.]" (Linder v. Thrifty Oil Co.
(2000) 23 Ca1.4th 429,435-436 (Linder); accord, Sav-OnDrug Stores, supra, at pp...
326-327.)
Thus, "[t]he appeal of an order denyip.g class certification presents an exception
to the general rule .that a reviewing court will look to the trial court's result, not its
rationale. If the trial court failed to follow the correct legal analysis when deciding .
. .
whether to certify a class action, 'an appellate court is required to reverse anorder
. denying certification ... , "even though there may be substantial evidellce to
. support the court's order.'" [Citations.] In other words, we review only the reasons
given by the trial court for denial of class certification, and ignore any other grounds
8
2.

that might support deniaL" (Bartold v, Glendale Federal Bank (2000) 81 Cal.App.4th .
816, 828-829.) '" [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.' ", [Citations.]" (Sav-On Drug Stores, supra, 34 Cal.4th at p. 328.)
Employers need only provide employees with breaks.
The trial court first held that California law requires that employers provide, but
not ensure, employees take meal and rest breaks. Since we must ascertain if the trial
. court's ruling was based upon an erroneous legal analysis (Linder, supra, 23 Cal.4th at
pp. 435-436), we tum to this legal issue.
a. The trial court's legal analysis was correct.
Labor Code section 226.7, subdivision (a) states: ''No employer shall require
any employee to work during any meal or rest period mandated by an applicable order
of the Industrial Welfare Commission." Labor Code section 512, subdivision (a)
states that employers must provide employees with meal periods of not less than 30
minutes if they work shifts of more than five hours per day and a second 30,-ininute
.meal break ifthey work shifts longer than 10 hours per day.3
"[T]he Industrial Welfare Commission (IWC) 'is ... empoweredto formulate
regulations (known as wage orders) governing employment in the State of
California[.]' " (Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.AppAth 1524,
1534, citing Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557,561-
3 Labor Code section 512, subdivision (a) states: "An employer may not employ
an employee for a work period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes, except that if the total work
period per day of the employee is no more than six hours, the meal period may be
waived by mutual consent of both the employer and employee. An employer may not
employ an employee for a work period of more than 10 hours per day without
providing the employee with a second meal period of not less than 30 minutes, except
that if the total hours worked is no more than 12 hours, the second meal period may be
waived by mutual consent of the employer and the employee only if the frrst meal
period was not waived." (Italics added.)
9

."

.'

(
;; "
......
-.:(
,,-.--- .
562.) Labor Code section 516 specifically authorizes the IWC.to "adopt or amend
, working' condition ()rders with respect to break,periods, meal periods,and days ofrest
, for any workers in California consistent with the health and welfare ,of those workers." ,
IWC's \age orders are codified in the California Code of Regulations. (E.g.,'Sav-On '
Drug Stores, supra, 34Cal.4th at p. 324; Ghazaryan, supra, at p.1534.)
Wage Order 5-2001, which governs restaurantworkers like the Chipotle
.
employees, echoes the language of Labor Code section 512. It requires employers to
provide employees with a meal period of not less than 30 mmutes for a work period of
more than five hours. (Cal. Code Regs., tit. 8, 11050,subd. 11.)4 Similarly, Wage
,Order 5-2001 sUites that employers are to authorize andpermit employees to take a
10-minute rest break for every four hours worked. (Cal. Code Regs., tit. 8, 1i 050,
, subd. 12.)5 California employers are required to keep accurate records of meal, but
,4 "California Code of Regulations, title 8, seCtion 11050, subdivision 11 states in
pertinent part: "MealPeriods [m (A) No employer shall employ anYlpersonfor a . '
work period of more than five (5) hours without a meal period of not less than 30
, except that when a work period of not more than siX (6) hours will complete
the day's work the meal period may be waivedby mutual consent of the employer and
the employee. . .. [m' (B) If an employer fails toprovide an employee a meal period'
in accordance with the applicable provisions of this order,the employer shaltpay the
employee one (1) hour of pay at the employee's regular rate of compensation for each
, workday that the meal period is not provided;" '(Italics added.) ,
5
California Code of Regulations, title 8, section 11050, subdivision 12 states in
part: "Rest Periods [m (A) Every employer shall authorizean4permit all employees
to take rest periods, which insofar as practicable shall be in the middle of each work
period. The authorized rest period time shall be based on the total hours worked daily
at the rate often (10) minutes net resttimeper four (4) hours or major fraction thereof.
However, a rest period need not be authorized for employees whose total daily work'
time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be
coUnted, as for which there shall be no deduction from wages. [f1, (B)
If an employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee' one (1) hour
ofpay at the employee's regular rate of compensation for each workdaY',that ,the rest
period is not provided." (Italics added.)
10

not rest, breaks. (Cal. Code Regs., tit. 8, 11050, subd. 1; cf. Franco v. Athens
Disposal Co., Inc. (2009) 171 Cal.AppAth 1277, 1299.)
Hernandez admits employers must provide, i . e . ~ authorize andpermit,
employees to take rest breaks, but contends a different standard applies to meal breaks
and thus, the trial court's legal analysis was faulty. This contention is not persuasive.
"The California Supreme Court has described the interest protected by meal break
provisions, stating that '[a]nemployee forced to forgo his or her meal period ... has
been deprived of the right tobe free of the employer's control during the meal period. '
Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1104 (2007). It is an
employer's obligation to ensure that its employees are free from its control for thirty
minutes, not to ensure that the employees do any particular thing during that time.
Indeed, in characterizing violations of California meal period obligations in Murphy,
the California Supreme Court repeatedly described it as an obligation not to force
employees to work through breaks. [Citation.]" (Brown v. Federal Express Corp.
(C.D.Cai. 2008) 249 F . R ~ D . 580, 585, fn. omitted.)
Consistent with the purpose of requiring employers to provide employees with
meal breaks, theLaborCode and the IWC use mandatory language (e.g., Lab. Code,
, 226.7, subd. (a) ["No employer shall require any employee to work during anymeal or
rest period ..."D precluding employers from pressuring employees to skip breaks;
declining to schedule breaks, or establishing a work environment discouraging or
preventing employees from taking such breaks. The mandatory language does not
mean employers must ensUre employees take meal breaks. Our interpretation ofthe
meal break requirement is supported bythe definition of the word "provide" as used in
Labor Code sections 226.7, subdivision(b), and 512, subdivision (a), as well as
, California Code of Regulations, title 8, section 11050, subdivisions 11 and 12. (See
fn. 4 & fn. 5, ante.) "Provide" means ''to supply or make available." (Webster's
Ninth Collegiate Dictionary (1986) p. 948.)
Hernandez relies on Cicairos'v. Summit Logistics, Inc., supra, 133 Cal.AppAth
949 (Cicairos) to argue employers must ensure meal breaks are 'taken. In Cicairos, an
11

.'

.. employer did not schedule meal breaks for its truck driver employees, established a
system whereby drivers were pressured to make a certain number of trips during a
work day, had a monitoring system to track drivers, and did not include a code for rest
stops in its computer system. (Id. at p. 962.) These and other aspects of the work
environment effectively deprived drivers of an opportunity to take breaks. In
reversing a summary judgment granted to the employer with regard to meal break
claims, the appellate court relied upon a January 28,2002 opinion letter from the
. .
Division of Labor Standards Enforcement (DLSE). Cicairos stated, "Under the facts .
presented ... the [employer's] obligation to provide the plaintiffs with an adequate
meal period is not satisfied by assuming that the meal periods were taken, because
employers have 'an affirmative obligation to ensure that workers are actually relieved
of all duty.' (Dept. of Industrial Relations, DLSE, Opinion Letter No. 2002.01.28
.. (Jan. 28, 2002) p. 1.)" (Cicairos, supra, at pp: 962-963.) With regard to rest breaks,
Cicairos held "the [employer] could ... be liable if the plaintiffs did not take their full
10-minute rest breaks because, as a practical matter, the deferidant did not permit the .
plaintiffs to take their rest breaks. (See Cal. Code Regs., tit. 8, 11090,subd. 12(A)
[employer must authorize andpermit rest period].). .. [m The defendant has not .
proven it supplied the plaintiffs with their rest periods; therefore, suinmary judgment
was improper." (Cicairos, supra, at p. 963.)6
Cicairos does not assist Hernandez. The DLSE has withdrawn the opinion
letter upon which Cicairosbased its analysis. (Dept. of Industrial Relations, DLSE,
Opinion Letter (October 23,2008) ["Court Rulings on Meal Periods"].) -(2AA263)-
In doing so, the Division stated: "Taken together, the language of the statute and the
regulation, and the cases interpreting them demonstrates c;:ompelling support for the
. .
position that employers must provide meal periods to eniployeesbut do not have an
. additional obligation to .ensure that such meal periods are actually taken." (Dept. of ..
6 Cicairos concernedWage Order 9-2001 (Cal. Code Regs., tit. 8; 11090)
.covering workers in the transportation industry, but the pertinent wage order
provisions are materially similar..
12

e.

. .
Industrial Relations, DLSE, Opinion.Letter (October 23,2008) at p. 2.} Further;
Cicairos's conclusion relating to meal breaks did not depend upon an "ensure'"
standard. Rather, the facts in Cicairos were such that the employer's business
practices effectively deprived employees of the ability to take meal breaks. (Dept. of
Industrial Relations, DLSE, Opinion Letter (October 23,2008) at p. 5.)
. Hernandez's position also is not practical. "Requiring enforcement of meal
breaks would place an undue burden on employers whose employees are numerous or
who ... do not appear to remain in contact with the employer during the day. See
White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088-89 (N.D.Cal.2007). It would
also create perverse incentives, encouraging employees to violate company meal break
. policy in order to receive extra compensation under California wage and hour laws.
[Citation.]" (Brown v. Federal Express Corp., supra, 249 F.R.D. at p. 585.) Thus, .
. although the Supreme Court has yet to decide the issue, we hold that the trial court
used the correct legal analysis with regard to meal breaks.
b. ". The trial court was not foreclosed from: addressing thelegal issue.
-
Citing Linder, supra, 23 Cal.4th 439, Hernandez argues the trial court should
not have addressed whether employers must provide meal breaks rather than ensure
they be taken because a certification issue is "essentially a procedural one that.does not
.. ask whether an action is legallyor factually meritorious." (Id. at pp. 439-440; accord,
Sav-OnDrug Stores, supra, 34 Cal.4th at p. 326.)
. . . .
However, neither Linder nor other Supreme Court authority forecloses courts
. . '. -
from examining a legal issue in addressing certification. "[Linder] said only that a
plaintiff need not establish a likelihood of success on the merits in order to obtain class
. .
certification. It does not follow that, in determining whether the criteria ofCode of
Civil Procedure section 382 are met, a trial9r appellate court is precluded from
. . .
considering how various claims and defenses relate and may affect the course of the
"litigation, considerations that may overlap the case's merits. [Citation.] ... Linder . ..
expressly recognized that 'whether the claimsor defenses of the representative
plaintiffs are typical of Class claims or defenses' was an issue that might necessarily be
13

intertwined with the merits of the case, but which a court considering certification
necessarily could and should consider. [Citations.]" (Fireside Bank, supra, 40 Ca1.4th
at pp. 1091-1092; Washington Mutual Bank v. Superior Court (2001) 24 Ca1.4th 906
[choice of law issue had to be resolved before certification of nationwide class was
addressed as it was key to predominance and manageability1; Walshv. IKONOffice
.Solutions, Inc. (2007) 148 Cal.AppAth 1440, 1450 [affirmative defenses may be .
considered to defeat certification]; contra, Medrazo v. Honda o/North Hollywood
(2008) 166 Cal.AppAth 89,97-98.)
Hernandez also points to Jaimez v. Daiohs USA, Inc. (2010).181 Cal.AppAth
1286 (Jaimez) to support his argulllent that the trial court should not have examined
the proyide versus ensure legal issue. In Jaimez, Division One of this district reversed
the denial of class certification in a case that, like Cicairos, involved employees who
.... were on the road most .of the day or at customers' places of business: Jaimez found it
unnecessary to decide whether employers need only "provide" meal breaks and not
ensure employees take them. (Jaimez, supra,at pp. 1303-1304.) The declarations
.. established there were predominant common factual issues whether the employees
missed meal breaks because of the practice of designating delivery
schedules and r()utes that made it impossible for employees to both take their breaks
andcomplete their deliveries on time. (Id. atpp. 1300-1301.) Before 2006, the.
employer had a practice of deducting 30 minutes per shift for meal breaks even if no
break was taken, and after 2006, employees had to sign a manifest indicating they took
- . ". . .
a meal break, regardless of whether theytook the break, in order to get paid. (Id. at p..
1304.) Since the employer's practices presented. the predominant common factual
issues on the meal and rest break claims,Jaimez did not have to consider whether the
employer violated a duty to provide or to ensure breaks. Jaimez does not hold that in
. . .
. . .
every wage-and-hour case, even those presenting entirelydifferent factual issues, .
. . .
courts may not consider the merits of a legal issue in order to rule on class
certification. The trial court appropriately decided the threshold legal issue as it could .
not otherwise assess' whether class treatment was warranted.
14

.-

3. The trial court did not abuse its discretion in denying certification.
a. is substantial evidence supporting the trial court's ruling
individual issues predominate.
The declarations and depositions of putative class members showed Chipotle
did not have a universal practice with regard to breaks. Some employees declared they
always missed meal breaks; some declared they received meal breaks, but not rest
I
breaks; one declared his meal and rest breaks were combined; some did not declare
they were denied meal breaks; and others declared their breaks were delayed.
Employees declared their meal breaks were interrupted with varying degrees of
frequency, as demonstrated by one employee who declared he was frequently denied
his fIrst rest break, but always denied his second break. In the 73 declarations
provided by Chipotle, employees declared they had always been provided breaks.
. . '. .. .
Hernandez himself admitted that except for one occasion, managers in the Manhattan
Beach restaurant alwaysprovided him with an opportunity to take his breaks, but
managers in the Hawthorne restaurant denied him meal breaks- two or three times a
week.
The evidence before the trial court suggested that in order to prove Chipotle
-violated break laws, Hernandez would have to present an analysis restaurant-by-
-restaurant, and perhaps superirisor-by-supervisor. Given the variances in the
- declarations, Hernandez did not demonstrate a common practice or policy. (E.g., Ali v.
US.A. Cab Ltd. (2009) 176 Cal.AppAth 1333, 1350 ["When variations in proofof
harm require individualized evidence, the requisite community o{interest is missing
and class certification is improper"]; compare with Bufil v; Dollar Financial Group,
- Inc. (2008) 162 Cal.AppAth 1193 [certifIcation appropriate where there were
- -
allegations employer had policy of prohibiting certain-employees from takfug breaks].)
Even if Chipotle directed when employees could take breaks, there was
substantial evidence that Chipotle's supervisory personnel did not unifonnly handle
breaks. The only evidence of a company-wide policy andpractice was Chipotle's
evidence that it provided employees with meal and rest breaks as required by law.
15
b.

The time records do not demonstrate Hernandez can prove

on a classwide basis that Chipotle failed to provide employees
with breaks.
Hernandez argues he can prove Chipotle has not provided meal and rest breaks
by using employee time records that show employees did not clock in and out for meal
and rest breaks. However, there is substantial evidence the time records may be
unreliable, because Chipotle paid employees for breaks and, thus, employees lacked an
incentive to clock in and out, and many did not do so. Chipotle instructed managers
not to- correct erroneous time records of meal and rest breaks since Chipotle paid
employees for breaks, so there was no benefit gained by such time-record corrections.
A trier of fact will have to ascertain ifChipotle employees actually missed breaks, or
simply forgot to record them, as well as the reason why employees might have missed
breaks or went back to work before completing them. In light of the size of the
proposed class, there could be thousailds of mini-trials to address the factual issues,
supporting the trial court's conclusion that class t r e ~ t m e n t is not superior to individual
lawsuits. (Kenny v. Supercuts, Inc. (N.D.Cai. 2008) 252 F.R.D. 641, 646 [class
allegations that employer failed to provide meal breaks; disparity in employees' time
records showed individualiIiquiry required].f
7 Hernandez also argues Chipotlecannot rely upon the inaccuracy of its own
records to defeat certification because Chipotle was required to keep (iccurate records
ofallmeal breaks taken. (Cal. Code Regs., tit. 8, 11050, subd. 7; Aguiar v. Cintas
Corp. No.2 (2006)-144 Cal.App.4th 121, 134-135 [employer who failed to keep
accurate records in wage and hour claim class action case had burden ofproof where
employer .J?ermitted employees to work on many contracts and not just one at issue-and
where required records would have permitted determination of sub.classes]; Hernandez _
v. Mendoza (1988) 199 Cal.App.3d 721 [in non-class action case, burden ofproducing
evidence shifted to emplpyer where employer falsified records and failed to keep -
accurate records ofwork performedl) First, we doubt this argument applies to rest
break Claims, as employers are not obligated to keep records of rest breaks. (Cal. Code
Regs., tit. 8, 11050, subd. 7.) Further, here there was noevidence Chipotle falsified
records or purposefully failed to keep records. Certification of aclass is not required
simply because an employer's records of meal and rest breaks are not 100 percent
accurate.-
16

c. Hernandez's evidence does not undermine the trial court's ruling.

In the trial court, Hernandez pointed to Professor Kakigi's analysis to suggest
certification was appropriate because sampling of testimony and expert analysis would
prove the case. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 333 & fn. 6.) The trial
court correctly concluded that introducing evidence by the use of a sampling of
. employee testimony was not manageable. "It is not sufficient ... simply to mention a
. procedural tool; the party seeking class certification must explain how the procedure
will effectively manage the issues in question." (Dunbar v. Albertson's, Inc. (2006)
141 Cal.AppAth 1422, 1432.) .
Professor Kakigi did not show a sampling of testimony would simplify atrial.
He found that 92 percent ofChip?tle's employees missed at least one meal break.. We
have already noted there are reasons to doubt whether the time records on which his
analysis was based are reliable proofof missed breaks. As the trial court noted, "What
percentage of the 92% have innocent explanations? If, for example, 75% of the 92%
have innocent explanations for the missed break, it would not be rational to allow each
side the same number of 'samples' to put forth at trial. The C ~ > u r t must know this
percentage in order to determine how many samples to allocate to each party. A
census on the 92% of employees is required."
. Additionally, Professor Kakigi premised his conclusions on the erroneous legal
standard that Chipotle had to ensure employees took breaks. He assumed a break was
missed ifan employee clocked back in one minute early from a break, without
accounting for why that occurred. As a practical matter, employees may have .
voluntarily chosen to return to work early. There was evidence some employees
occasionally forgot to record their breaks and sometimes they recorded breaks
inaccurately. Even if the employee records showed anemployee did not take a break
at all, the reason for that "missed" break must be ascertained,.because, for example, if
that employee willingly decided to forgo a break, there was no unlawful conduct.
Further, the professor's conclusions did not demonstrate Chipotle had a practice
of denying breaks. Professor Kakigi stated that 92 percent of employees missed a
17

.'

break and all restaurants showed missed breaks. However, ,Professor Kakigi did not
demonstrate a pattern or practice of missed br.eaks, for.example, with evidence that
missed breaks occurred more frequently at certain times, in specific restaurants, during
certain seasons or shifts; nor did he offer any explanation why some employees at the '
same restaurant had different experiences.
-',
d. There is substantial evidence of conflicts of interest among the
putative class members.
The last reason provided by the court to deny certification was that members of
the putative class had conflicts of interests. There was substantial evidence that some
employees move 'in and out of supervisory roles with the responsibility to provide
meal and rest breaks for themselves and other employees on the shift, without a
change oftitle or other indicia of managerial status. Therefore, some putative class
members may accuse other putative class members of violating their meal and rest
period rights. The trial court did not abuse its disc!etion in concluding the likelihood
that some class members might testify against other class members demonstrated
antagonism of so substaritial a degree as to defeat the purpose of class certification.
(Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462,472).
DISPOSITION
'Because there is substantial evidence to support the trial court's discretionary
ruling, We affrrm the order denying certification. Chipotle is awar<:ied costs on appeal.
GRIMES,].
We Concur:
<'
"
FLIER,.ACTING P. J. ,O'CONNELL J;*
" ,
. * Judge of the Los Angeles Superior CoUJ1, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution. .
18

).
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

.:

ROGELIO HERNANDEZ
Plaintiff
VS.
CHIPOTLE MEXICAN GRILL, INC.
Defendant
Case No.: BC373759
COURT'S RULING ON:
PLAINTIFF'S MOTION FOR
CLASS CERTIFICATION AND
DEFENDANT'S MOTION TO DENY
CLASS CERTIFICATION

.e
RULING ON SUBMITTED MATTER
Rogelio Hernandez vs. Chipotle Mexican Grill, Inc.
Case No. BC373759
Department 14, Judge Terry Green
(Original Hearing Date: March 2, 2009)
PLAINTIFF'S MOTION FOR CLASS CERTIFICATION and DEFENDANT'S
MOTION TO DENY CLASS CERTIFICATION

A. Evidentiary Objections

I
.i
Plaintiff's objections to the Declaration of Brown 7 (p. 3:8-12), 8 (p. 3:25-
9:2), 10 (p. 4:24-25), 11 (p. 5:13-15), 15 (p. 6:24-26), 17 (p. 7:21-22,7:24-26),25 (p.
10:25-26), and 26(p. 11 :4-6) are sustained on grounds stated;
Defendant's objection number 8 to the Declaration ofAguilcU; number 6 to
.Declaration of Amezcua, number 9 to Declaration ofBalbuena, number 11 to Declaration
of Chavez, number 7 to Declaration of Gonzalez, and numbers 7-8 to Declaration of
Munoz are sustained on grounds stated; and
All other objections are overruled.
B. Judicial Notice
Defendant's request for judicial notice of(1) Memorandum re Court Ruling on
Meal Periods issued by the DLSE; (2) Ruling and Order in Tenent HeaIthcare Cases IV,
Los Angeles County Superior Court, case no. JCCP 4377; and (3) Minute Order dated
June 16,2005 in Colburn v. Inc., Los Angeles Superior Court, case no.
BC299391 are granted per Evidence Code 452(c)-(d).
C. Motion for Class Certification/Motion to Deny Class Certification
The proposed class that Plaintiff is seeking certification is defined as follows:
"All persons who are or have been employed by Chipotle at any location
in California at any time since July 3, 2003. in any hourly position other
the four managerial positions: Restaurateur. General Manager,
Apprentice, Kitchen Manager and Service Manager." .
Class certification is appropriate when "the question is one ofa common or
general interest, of many persons, or when parties are nwnerous and it is impracticable to
bring them all before the court." Code of Civil Procedure 382. "To obtain certification,
a party must establish the existence of both an ascertainable class and a well-defined
community of interest among class members. The community of interest requirement
\

involves three factors: '[1] predominant questions oflaw or fact; [2] class representatives
with claims or defenses typical of the class; and [3] class representatives who can
adequately represent the class. The party seeking certification has the burden of
establishing the prerequisites for a class action." Linder v. Thrifty Oil Co. (2000) 23
Cal.4th 429, 435.
APlaintiff must present substantial evidence demonstrating that these
factors have been satisfied, as "a certification ruling not supported by substantial
evidence cannot stand." Lockheed Martin Corp. v. Superior Court (Carrillo)
(2003) 29 CaI.4th 1096, 1106. Trial courts are afforded great discretion in
granting or denying certification, and "[a]ny valid pertinent reason stated will be
sufficient to uphold the order." Linder, supra, 23 CalAth at 43536.
1. Numerosity. The class must be sufficiently numerous that
individual joinder is impracticable. However "no set number is required as a
matter of law for the maintenance of a class action." Rose v. City ofHayward
(1981) 126 Cal. App. 3d 926, 934.
The putative class members consist of over 1,500 hourly, non-exempt
. crew members (excluding Managers). per the provided sampling of class
members infonnation and Defendant's agent testified that it currently employees
over 3,000 hourly employees. Dec!. of Leonard at 110 (plaintiff's Exhibit 4);
Depo. of Brown at 26:16-27:2 (Plaintiff's Exhibit B). Therefore the class is
sufficiently numerous that joinder is impractical.
2. AscertainabiIity. An ascertainable class exists after examining "(1)
the class definition, (2) the size ofthe class, and (3) the means available for
identifying class members." Global Minerals & Metals Corp. v. Superior Court
(National Metals, Inc.) (2003) 113 Cal. App. 4
th
836, 849.
The identity of some of the class members have essentially already been
done through the sampling provided and the remaining are identifiable through
Defendant's payroll records and/or employee files. Dec!. of Dominguez at ~ 2 .
The class definition conveys sufficient meaning to enable a person to determine if
he/she is a member ofthe class. Furthermore, Defendant does not appear to
dispute this element. Therefore, the class is ascertainable.
3. JYpicality. The named plaintiff must be a member ofthe class.
Petherbridge v. Altadena Federal Savings and Loan Association (1974) 37.
Cal.App.3d 193, 200. The test of typicality is "whether other members have the
:: ~ same or similar injury, whether the action is based on conduct which is not unique
Jt to the named plaintiffs, and whether other class members have been injured by the
;,; same cowse of conduct." Seastrom v. Neways. Inc. (2007) 149 Cal. App. 4
th
. iJ 1496, 1502. However, the class representative's interests need not be identical to
those ofclass members, only similarly situated. Classen v. Weller (1983) 145
Cal.App.3d 27,46.

i
I

,
.:L

h
'1

Plaintiff is a member of the class he seeks to represent as Defendant's agent,

Brown, attests that Plaintiff Hernandez was employed as a crew member in two different
Chipotle restaurants. Decl. of Brown at Furthermore, Plaintifftestified that on
occasions he missed his meal and rest breaks and on other occaSions his meal and rest
breaks were interrupted and shortened with no make-up break provided, which his time
card report verifies. Depo. of Hemandez at 415:23-417:1,421:22-422:16,437:11-15,
451: 19-452:2, 468: 1-4 (plaintiff's Exhibit D); Plaintiff's Exhibit E. Additionally,
putative" class members attest to either missing their breaks (meals and/or rest) or
receiving shorten breaks (i.e. interrupted) or breaks were delayed. Decls. of Mendoza at
"8-11, R. Gonzalez at "5-6, and Y. Gonzalez at (plaintiff's Exhibits 1-3,"
respectively); Deels. ofAguilar at mJ5-7, 11-13, Amezcua at Balbuena at m6-8, 12,
Barnaca at Chavez at 14-15, N. Gonzalez at R. Gonzalez at Lara
at 12, Leon at ,"7-11, Munoz at Roberts at 11, Romero at mJ8-11,
Scales at 10 and Valasco at (Plaintiff's Supp!. Exhibits 1-15, respectively). "
Although Defendant presents evidenceofa policy, which on its face appears to
comply with California meal and rest break Labor Code provisions, and declarations of
putative class members and managers who attest to meal and rest breaks being provided,
authorized and permitted, the evidence presented by Plaintiff is sufficient to demonstrate
that he shares in similar claims with the class. Plaintiff's Exhibit A; Decl. of Pineda at
10, 12-13 (Defendant's Appendix Exhibit 1); Class Member Declarants at
(Defendant's Appendix Exhibits 2-57); Manager Declarants at (Defendant's
Appendix Exhibits 58-73).
Although Plaintiff does not seek certification of his denied wages (off the clock,
overtime) and failure to maintain records, the Court needs to determine if certification is
appropriate as to these claims in that Defendant brought a. proper motion seeking to deny
certification ofthose claims. The California Supreme Court has stated that a defendant
can bring a motion for determination of the appropriateness of a case as a class action.
City ofSan. Jose \I. Superior Court (1974) 12 Ca1.3d 447,453-54. Defendant presents
evidence from putative class members who attest that they never worked offthe clock.
Decl. of Pineda at (Defendant?s Appendix Exhibit 1); Class Member Declarants at
(Defendant's Appendix Exhibits 2-57). Yet, in contrast, Plaintiff testified to least on a
few occasions he worked off the clock with his supervisor aware ofsuch off the clock
work [Depo. of Hemandez at 40:9-50:21 (Defendant's Exhibit E)] and presents
declarations from former and current putative class members who attest to occasionally
working off the clock. Deels. ofAguilar at N. Gonzalez at Romero at and
Valasco at'13 (plaintiff's Suppl. Exhibits 1, 7, 13 and 15, respectively). As with the
meal arid rest break claims, the evidence presented is sufficient to establish that Plaintiff
and class members share in similar claims for offthe clock work.
4. Adequacy. The class representative must act as a zealous fiduciary (La
Sala \I. American Servings & Loan Association (1971) 5 Cal.3d 864, 871); raise the claims
"reasonably expected to be raised by the members of the class" (City ofSan Jose v.
Superior Court (1974) 12 Cal.3d 447,464); and no conflicts exists that goes to very
-
-
-
-
e
-
-,
I
-
-
-
-I
subject matter of the litigation (J.P. Morgan & Co., Inc. v. Superior Court (Heliotrope
General, Inc.) (2003) 113 Cal.App.4th 195,212; Richmondv. Dart Industries, Inc. (1981)
29 Ca1.3d 462,470). Class Counsel must be qualified, experienced and generally able to
conduct the proposed litigation. McGhee v. Bank ofAmerica (1976) 60 Cal.App.3d 442,
450; Miller v. Woods (1983) 148 Cal.App.3d 862,874. "
Plaintiff Hernandez seems to be an adequate class representative. Plaintiff
assumes a fiduciary responsibility when he filed the within litigation to act on behalf of
the absent class members. Earley v. Superior Court (2000) 79 Cal. App. 4
th
1420, 1434;
see also La Sala v. American SaVings & Loan Association (1971) 5 Cal.3d 864, 871.
Although Plaintiff sat for his deposition and is no real indication that he will not act in the
best interest of the class, he, oil the other hand, provided no declaration in support of his
within motion, which may indicate his lack of interest and/or understanding of his role as
a Class Representative. .
The declarations of attorney Finberg and Matern sufficiently set forth their
qualifications, experience and skill so as to fmd that they are adequate Class Counsel.
4. Commonality. "The ultimate question in every [purported class action] is
whether, given an ascertainable class, 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:' Brown v. The Regents ofthe University ofCalifornia (1984) 151
Cal.App.3d 982,989.
a. Meal and Rest Breaks (1st, 2 n d ~ 5
th
& 6
th
causes ofactions). Labor
Code 226.7 states that an employer "shall not require any employee to work during any
meal or rest period mandated by an applicable order ofthe Industrial Welfare
Commission." All wage orders (12) contain the language that "every employer shall
authorize and permit all employees to take rest periods." And Labor Code 512 and all
applicable wage orders (11) states that an employer shall not employ a person for more
than 5 hours without a 30-minute meal period, unless works less than 6 hours, then the
meal can be mutually waived. .
The Courts and litigants are generally in agreement that rest breaks only
need to be authorized and permitted, which means made available. See Cicairos"v.
Summit Logistics, Inc. (2005) 133 Cal. App. 4
th
949,963; White v. Starbucks Corp. (N.D.
Cal. 2007) 497 F.Supp.2d 1080, 1086; Brown v. Federal Express Corporation (C.D. Cal.
2008) 249 F.R.D. 580,584.
In contrast to therest break provisions, the meal break provisions are in
dispute. Currently, the California Supreme Court is reviewing two California appellate
cases that held that the standards under Labor Code 226.7, 512 and Wage Orders was
provide. The only California appellate authority as to meal breaks held that an employer
"obligation W provide [employees] with an adequate meal period is not satisfied by
assuining that the meal periods were taken, because employers have ~ a n affirmative

.:
. I
i
1

obligation to ensure that workers are actually relieved of all duty' (Dept. of Industrial
Relations, DLSE, Opinion Letter No. 2002.01.28 (Jan. 28, 2002) p.l)." Cicairos, supra,
133 Cal. App. 4
th
at 962-63. The evidence in Cicairos was that despite under the
collective bargaining agreement to schedule for meals, the employer did not schedule
meals, did not monitor compliance with taking meals, and pressured its drivers to make
more than one trip so would be harder to stop for lunch. Cicairos, supra, 133 Cal. App.
4
th
at 955-56,962-63. It was under those facts that the Court found defendant failed to
establish it providedthe plaintiffs with their required meal period. Id at 963 (emphasis
added).
,
However, several District Courts in interpreting California meal break
laws have held that the standard is not ensure meal breaks are taken but that an employer
provides its employees with the opportunity to take hislher 30-minute free ofduty meal
period. Brown v. Federal Express Corporation (C.D. Cal. 2008) 249 F.R.D. 580, 584-85
("It is an employer's obligation to ensure that its employees are free from its control for
thirty minutes, not to ensure that the employees do any particular thing during that
time"); Kenny v. Supercuts, Inc. (N.D. 2008) 252 F.R.D. 641,645 ("The structure of the
statute and the Wage Order demonstrate that the waiver applies to the employer's
obligation to 'provide' a meal break, not to the employee's decision to take a meal
break."); White vs. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080, 1088-89
("employee must show that he was forced toforego his meal breaks as opposed to merely
showing that he did not take them regardless of the reason").
The Brown, Kenny, and White Courts held that Cicairos should be read
under its facts and more importantly, that the language regarding an affumative
obligation is consistent with their holding. Brown, supra, 249 F.R.D. at 586; Kenny,
supra, 252 F.R.D. at 645-46; White, supra, 497 F.Supp.2d at 1089. The combination of
Cicairos defendants knowing its employees were skipping meals with no steps to address
the situation with the management policies meant that the defendant was effectively
depriving its employees of their provided breaks. Brown, supra, 249 F.R.D. at 586;
Kenny, supra, 252 F.R.D. at 645-46; White, supra, 497 F.Supp.2d at 1089.
Although the California Supreme Court is currently taking up this matter on
review, it is likely to hold that the law, as stated under Cicairos, Brown, Kenny and White,
is that an employer must ensure that employees are provided with such meal and rest
breaks and that the employer does not do anything, constructively (impede) or overtly
(demand), to prevent a meal from being taken. Yet, the employer is not required to
ensure that its employees actually take their meal or rest breaks.
Here, although there are common questions regarding whether Defendant policy
:: f and practice was to provide, authorize and permit meal and rest breaks, whether crew
.:1. members missed or received shorten meal and rest breaks and whether such constituted
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_ ~ ) an unfair business practice, these questions do not predominate.
, c ~
Plaintiff argues that the time records can establish ifand when a meal or rest
break was taken in that Defendant's policy is that the crew members are to clock in and

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out for hislher meal and rest breaks. However, as Defendant jJQints out, these records
cannot establish why a meal or rest break were missed or shortened. Under the standards
espoused above, in order to establish that the Defendant is liable, Plaintiff will need to
establish that Defendant constructively or overtly prevented an employee from taking his
or her meal and rest breaks. Furthermore, as stated above under Typicality, Defendant
maintains a written meal and rest break policy that on its face appears to comply with
California Labor Code 226.7 and 512. . . .
Additionally, the evidence is that Defendant pays its employees for all hours
while on shift, Le. meal and rest breaks are paid time. Thus, the employees do not have
an incentive to clock in and out for their meal and rest breaks. Although Plaintiffpresents
evidence that Defendant had a policy that the Managers could correct time keeping
mistakes, the evidence was also that the Managers were instructed to not correct for
failures to clock in and out for breaks. Plaintiff's Exhibit A; Decl. of Brown at 1[28;
Managers Suppl. Declarants at ~ ~ 4 - 5 (Defendant's Appendix Exhibits 7 4 ~ 8 8 . Plus, there
is no evidence that the Managers ever did in fact make,corrections for a crew member's
failure to clock in and out on a meal or rest break.
As the Court concluded in Kimoto, et al v. McDonald's Corp, 2008 U.S.
Lexis 86203:
"To support her claims, Plaintiffhas submitted a sampling oftime punch
meal and rest break data for McDonald's non-exempt California restaurant
employees from March 2006 through March 1, 2008, and time punch summary
reports of various employees... the Court finds that individual questions would still
predominate. The Court cannot infer from the summary reports of various
employees a company-wide policy of not authorizing meal or rest periods. First,
there is no financial incentive for an employee. to clock in and out for a ten-minute
rest period, since that employee will get paid regardless. Thus, without other
evidence, the Court cannot assume that the employees accurately recorded the
timing oftheir breaks. This is especially true in light of Defendant's evidence -
declarations by store managers - that often an employee will take a rest period
without punching in and out, despite being instructed to do so... and that often,
employees fail to clock out for meal periods when taken... Second, these time
records actually demonstrate the individual nature ofthe inquiry. Some of the
employees clocked out for their full 30 minute meal periods or ten-minute breaks
most of the time, and some appear to have clocked out only part ofthe time.
Moreover, Defendant has submitted evidence showing that authorizations to take
rest periods and meal breaks vary from manager to manager, and also vary from
store to store." Id.
::f
~ t As in Brown, Kenny, White and Kimoto, oil Supras, the Court and parties here will
.. ~ be required to ascertain from each class member whose time records show that a meal or
rest break was missed or shortened (i) whether the missing noted break was because he/she
actually missed hislher break or simply forget to clock in and out; (ii) the reason why

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he/she missed hislher provided, authorized and permitted meal and rest breaks; and (iii) the
reason why he/she returned early from hislher meal or rest break. As these individualized
questions will need to be answered to determine Defendant Chipotle's liability, and as they
predominate the issues herein, commonality is defeated.
b. Unpaid Overtime, Maintain Require Records (3
rd
_4
tb
causes of
actions). Although there are common questions of whether the class members' worked
off the clock and whether Defendant was aware of the said off the clock work, as Plaintiff
does not seek certification of this issue, he presents no evidence or argument how those
common questions could be proven in a common, class-wide basis. The determination of
the overtime/off the clock claim will require the Court to individually inquire with each
class member whether he/she worked off the clock, whether such was at the direction of
hislher supervisor and/or whether the Defendant through its agents were aware that the
class member was working off the clock. These individual questions do not even include
the individual questions that would be required to detennine any damages owed to the
class members. Additionally, as the maintain records claim is essentially derivative ofthe .
overtime/off the clock claim, individual inquiry would ~ e necessary to determine if the
class member worked off the clock so that those hours would then not have been properly
recorded. Thus, commonality fails ,as to these claims.
5. Superiority. "The superiority criterion is manifest in the determination
that a class action brought under Code of Civil Procedure 382 would produce 'substantial
benefits' to the litigants and the judicial system.". Schneider v. Vennard (1986) 183 Cal..
App. 3d 1340, 1347.
After considering both the benefits that a class action would yield, as well as the
potential unfairness to the Oefendants, which might result from a litigation of the
underlying claims through aggregate procedures rather than through separate trials, the
Court finds that class adjudication of the class claims provide no substantial benefit to the
Court or parties in that individual inquiry will be required to determine if Defendant is .
liable for denying proper meal and rest breaks to each of its thousands ofemployees. .
Furthermore, the adjudication of these individual issues' renders class-wide adjudication
unmanageable.
At oral argument, Plaintiff argued that the Court and parties could manage the
individual inquiry through use of sampling testimony and expert analysis. In that regard,
Plaintiff filed a supplemental expert analysis that stated the 92% of the employees missed
one meal break and 88% had at least one missed rest break at some point in their
employment. Dec!. of Kakigi at ~ 3 . CoUnsel for Plaintiff admitted that Mr Kakigi
assumed in his analysis that the law requires employers to ensure breaks are taken, so the
;; f recorded absence in the employer's records ofa complete break is proof of violation.
.:L However, as this Court has indicated, this is not the standard. The fact that the time
: , : ~
records indicates a meal or rest break was missed does not in of itself establish that
~ i ~ Defendant failed to provide, authorize or permit the employee from taking hislher meal or
rest break.

Furthermore, the sampling of those 92% and 8S% employees does not appear to
be manageable. Ifa sampling of testimony is provided at trial, then the question arises of
how many from each side? What percentage of the 92% have innocent explanations? If,
for example, 75% of the 92% have innocent explanations for the missed break, it would
not be rational to allow each side the same number of "samples" to put forth at trial. The
Court must know this percentage in order to determine how many samples to allocate to
each party. Acensus on the 92% ofemployees is required. If sampling testimony is
provided, then how many rebuttable witnesses does each side get to present? Plaintiff
fails to present a clear outline of how the Court and parties will be able to manage the
various individual questions that will be required to be answered prior to finding
Defendant liable; therefore, class-wide litigation here is unmanageable.
Another independent reason class treatment here is not superior stems from the
conflicts ofinterest that appear within the class.
Managers and leads during a shift have the responsibility to provide, authorize
and/orpennit the crew members the ability to take hislher meal and rest breaks.
Plaintiff's Exhibit A; Manager Declarants at 14 (Defendant's Appendix Exhibits 58-73).
The oral arguments andpresented evidence is that some of the class members during the
class period have moved in and out Of managers positions. Additionally, some ofthe
putative class members during various shifts would have acted as leads. As such,
Plaintiff claims will pit putative class members against each other in order to establish
that Defendant failed to provide, authorize and permit meal and rest breaks. The court
can deny certification if the antagonism is ofsuch a substantial degree that the purpose
for class certification would be defeated. Richmondv. Dart Industries, Inc. (1981) 29
Ca1.3d 462, 472. Such is the case here.
Because individual questions predominate, and also because of the inherent
conflict of interest, class treatment in this case is neither superior or desireable.
Conclusion
Ultimately, the Court must use its discretion to ascertain ifclass treatment is the
superior manner with which to proceed. This Court is well aware that, in wage and hour
cases, appellate courts have shown a preference for class treatment. Ghazaryan v. Diva.
Limousine, Ltd 169 CA4
th
1524, 1538, Prince v. CIS Transportaton, Inc., 118 CA4
th
1320,1328. This Court certainly agrees, and routinely certifies classes in wage and hour
cases. Should the Supreme Court decide that the applicable standard for missed meal and
rest breaks is the standard, this preference for class treatment will apply equally .
to those types of cases, also.

-1 t .This Court believes, however, that the proper standard is "provide and do not
", impede", and that the Supreme Court will so decide. Should the Supreme Court so
decide, it is difficult to see how these missed meal and rest break cases can proceed as
class actions, as individual questions will (almost) always predominate.

Were this to go to trial as a class action under the "provide" standard, what would
the trial look like? Each class member must be contacted to determine ifthe break was
provided, and if missed or cut short, whether it was voluntary on the part of the
employee, or prevented or impeded by the employer. Should the employee in any
individual case charge that it was impeded or not provided, then the employer would be
free to dispute this contention with more witnesses. For an employer the size of
Defendant, this could potentially result in several hundred or thousands of mini-trials,
and defeat totally the purpose of handling the case as a class.
For these reasons, this court fully supports and adopts the reasoning ofthe Federal
District Courts in the cases cited herein that find class treatment, in cases analogous to
this one, inappropriate.
Motion for Class Certification is denied, Motion to Deny Class Certification is
granted.

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