Opinion
B196057
10-29-2008
ROHITH CHEENAN, Plaintiff and Appellant, v. COUNTRYWIDE HOME LOANS, INC. et al., Defendants and Respondents.
Spiro Moss Barness and Gregory N. Karasik; Law Offices of Peter M. Hart and Peter M. Hart for Plaintiff and Appellant. Seyfarth Shaw, Thomas R. Kaufman and Gregg A. Fisch; Venable, Frank Sandelman, and Jon-Jamison Hill; Wilke Fleury Hoffelt Gould & Birney and Kelli M. Kennaday for Defendants and Respondents.
Not to be Published
SUMMARY
Rohith Cheenan was an information technology worker employed by Rapidigm, Inc. (Rapidigm) and assigned to work at Countrywide Home Loans, Inc. (Countrywide) as a "temporary" computer programmer. Cheenan filed a class action complaint on behalf of both Rapidigm and Countrywide employees. Cheenan said the companies were joint employers. They failed, he alleged, to pay overtime wages, to pay employees for all of the hours they worked, and to pay final wages to terminated employees on time. On appeal, Cheenan contests the trial courts ruling denying class certification to all six of his proposed putative classes. Cheenan contends that the trial court improperly denied class certification based on the merits of his substantive claims, and erred by placing the burden on him to establish that class certification was appropriate. We affirm.
FACTS AND PROCEDURAL HISTORY
Rapidigm is an information technology consulting firm. Rapidigm recruits and hires people with computer technology and programming expertise and sends them to work at other companies in the United States. In about 2000, Rapidigm hired plaintiff Rohith Cheenan and placed him with Countrywide. Cheenan alleges that "Countrywide directed, supervised, and controlled the conditions, hours and locations of [his] work, and Rapidigm paid and controlled [Cheenans] wages, treated [him] as its employee for tax reporting and withholding purposes, and provided workers compensation insurance that covered [him]." Cheenan worked as a computer programmer at Countrywide until August 2005 when his employment with Rapidigm and Countrywide (collectively defendants) ended.
In January 2006, Cheenan filed a class action complaint alleging that defendants had failed to pay his final wages on time, as Labor Code sections 201 and 202 require. The complaint defined two putative classes, one consisting of former Rapidigm employees who were placed at any third party company, and a second class consisting of former "direct" Countrywide employees and temporary employees who worked at Countrywide. In February 2006, Rapidigm sent Cheenan what it contended was payment of all of his outstanding final wages, interest on those wages, and all statutory penalties Cheenan could have received under Labor Code section 203. Rapidigm then answered the complaint. Countrywide filed a motion to strike parts of the complaint and deposed Cheenan. Defendants moved to deny class certification. Cheenan sought leave to amend his complaint. In July 2006, the trial court granted Cheenan leave to amend the complaint and denied all other pending motions without prejudice.
Cheenans first amended complaint proposed six classes:
Countrywide Production Technology Employees Class: All current and former Production Technology Employees who worked at a Countrywide facility in California at any time during the four-year period preceding the filing of this action through the date notice is mailed to the class. (The first amended complaint defined "production technology employees" as "computer programmers, computer analysts, and computer quality assurance workers.")
Rapidigm Production Technology Employees Class: All current and former Production Technology Employees who worked at a Countrywide facility in California and were on the payroll of Rapidigm at any time during the four-year period preceding the filing of this action through the date notice is mailed to the class.
Countrywide Non-Exempt Production Technology Employees Subclass: All current and former Production Technology Employees who worked at a Countrywide facility in California, and who were effectively paid less than the minimum hourly rate for employees in the computer software field to qualify for the professional exemption under Wage Orders 4-2001, at any time during the four-year period preceding the filing of this action through the date notice is mailed to the class.
Rapidigm Non-Exempt Production Technology Employees Subclass: All current and former Production Technology Employees who worked at a Countrywide facility in California and were on the payroll of Rapidigm, and who were effectively paid less than the minimum hourly rate for employees in the computer software field to qualify for the professional exemption under Wage Orders 4-2001, at any time during the four-year period preceding the filing of this action through the date notice is mailed to the class.
Countrywide Terminated Employee Class: All employees who worked at a Countrywide facility in California whose employment ended at any time within the four-year period preceding the filing of this action through the date notice is mailed to the class.
Rapidigm Terminated Employee Class: All employees who worked at a company in California who were provided by and on the payroll of Rapidigm, whose employment ended at any time within the four-year period preceding the filing of this action through the date notice is mailed to the class.
Countrywide answered the first amended complaint. Rapidigm filed a new motion to strike parts of the amended complaint.
In November 2006, Countrywide filed a second motion asking the trial court to deny class certification. Countrywide supported the motion with excerpts from Cheenans deposition, several deposition exhibits, and the declaration of Countrywides vice president of recruitment, Sandra Buhler. Countrywide argued that certification was inappropriate for the Countrywide Production Technology Employee Class and the Countrywide Non-Exempt Subclass because Cheenans claims were not typical of the claims any "direct" Countrywide employees would have. To support this argument, Countrywide cited Cheenans deposition, in which he testified that he received compensation and employment benefits from Rapidigm, not Countrywide. Countrywide also noted Cheenans description of how he was paid: Cheenan filled out a Rapidigm timesheet, a Countrywide supervisor approved the timesheet, and Cheenan faxed the timesheet to Rapidigm for payment. Countrywide contrasted this with how Countrywide employees were paid: according to Buhler, Countrywide provided employee benefits to its employees and paid them directly. In addition, Buhler declared that Countrywide "classified its own employees as exempt or non-exempt as applicable," while "Rapidigm was the entity with full control over Plaintiffs classification and determined whether he was eligible to receive overtime compensation."
Countrywide also argued that the Rapidigm Production Technology class and the Rapidigm Non-Exempt Production Technology subclass were too small to be certified and Cheenan could not demonstrate that a class action would be superior to individual lawsuits. The Buhler declaration stated that for the time period relevant to the action, Countrywide used only 11 Rapidigm employees. Finally, Countrywide argued that Cheenan was not an adequate representative for the terminated employee classes because Rapidigm had fully satisfied and mooted his individual claims under Labor Code sections 201, 202, and 203 by paying him the "maximum recovery possible."
Cheenan opposed Countrywides motion, but did not submit any evidence or discussion as to why class treatment of the suit was appropriate. Cheenan argued that his claims were typical of those in the Countrywide classes because defendants were "joint employers," that Countrywide controlled and directed the work of all of the production technology employees, and that it did not matter who was actually issuing the employees paychecks because all putative class members suffered the same injury. Cheenan further contended that Countrywide was attempting to force the court to rule prematurely on the merits of his joint employer allegations. Cheenan also argued that the Rapidigm classes were not too small as a matter of law and that he planned to amend his complaint again to redefine the classes in a way that would significantly enlarge them. In addition, Cheenan argued that he adequately represented the terminated employee classes because Rapidigm still owed him unpaid overtime wages and, even if Rapidigm had completely resolved his individual claims, he was not automatically disqualified from representing the class. Cheenan argued alternatively that the trial court should allow him the opportunity to amend the complaint to name a suitable class representative.
In its reply brief, Countrywide defended its main points. It also argued that, "while it may be appropriate at some later time for Plaintiff to conduct discovery to find a sufficient class representative, if none can be identified otherwise, the Court need not decide that discovery issue now. Instead, the Court can address that issue at the appropriate later time, if it becomes necessary." Countrywide likewise noted that "discovery has been ongoing for many months and . . . Plaintiff has failed to explain what he plausibly might uncover in discovery that would make him an adequate class representative for any of the putative classes." Countrywide stated that it did "not seek dismissal of the action at this time. However, should Plaintiff fail to identify a suitable class representative, Countrywide may seek such a dismissal at the appropriate time." Countrywide urged the court to grant its motion, noting that case law required that, "if the Plaintiff is deemed inadequate, he should have a reasonable opportunity to identify a substitute plaintiff to act as class representative. But [this case law does] not mandate denial of a valid motion to deny certification predicated on the mootness of the particular class representative plaintiffs claim." Countrywides reply brief also noted that, "[i]f Plaintiff properly seeks to later amend the complaint, then the issue of whether the applicable classes as amended are sufficiently numerous and, thus, appropriate . . . can be determined then."
The trial court held oral argument on Countrywides motion. It was the judges twelfth matter on calendar that morning. The trial judge remarked that he had read the papers, cited a portion of a deposition, and asked plaintiffs counsel to respond to Countrywides reply brief. The interactive session occupied 16 pages of transcript, during which the court repeatedly asked the plaintiff for evidence that any other employee was similarly situated to Cheenan. Defense counsel submitted that no such evidence existed. Plaintiff spoke in response, but cited no evidence to refute the defense claim. Nor did the plaintiff request further discovery. Nor did the plaintiff ask that the court refrain from ruling until the plaintiff could identify an alternative class representative, should the court find Cheenan wanting for this role. At no point did either side suggest to this engaged trial judge that he do other than either grant or deny the motion.
During argument, the trial court expressed concern "that a matter thats been . . . filed for a year, there apparently is no evidence that [plaintiff] can point the Court to that would suggest that there is a viable class vis-à-vis Countrywide." Given this lack of evidence, the court commented that "with a case thats a year old Im not sure that it makes much difference . . . whether you [plaintiff] go first or they [the defendants] go first. You can ask for class certification or they can ask for the opposite to deny it and typically such motions are resolved, at least in this Court, somewhere between nine and 12 months after the filing of the complaint because we usually set trial somewhere between 12 and 15 months . . . ."
The court granted Countrywides motion. In a written order, the trial court made a number of observations and held that, "[f]or the reasons advanced by Countrywide and as further set forth herein, the motion will be granted."
On appeal, Cheenan contends that the trial court impermissibly ruled on the merits of his joint employer allegations, and that the court also erred by requiring Cheenan to establish the appropriateness of class certification, rather than putting the burden on Countrywide to "negate the possibility of certification."
DISCUSSION
I. Cheenans Appeal is Not Moot
Before turning to the merits of Cheenans appeal, we first address whether the appeal is moot. After Cheenan filed his notice of appeal, the parties settled. Cheenan dismissed all of his individual claims with prejudice. On our own motion, we raised the issue of whether the dismissal rendered Cheenans appeal moot, and requested supplemental briefing from the parties. In addition to his supplemental brief, Cheenan also submitted a motion to augment the appellate record with the request for dismissal filed in the trial court. We grant Cheenans motion.
In general, when parties settle an action while an appeal is pending, the appeal will be deemed moot, unless material issues remain for determination. (Ebensteiner Co. Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1179-1181.) A class action presents a special case in that a plaintiff who sues on behalf of a class represents the interests of the putative class members in addition to his own, and he "assumes a fiduciary obligation to the members of the class, surrendering any right to compromise the group action in return for an individual gain." (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871 (La Sala).) Indeed, California courts have consistently recognized the rights of absent class members, even before a class action certification determination is made.
For example, in La Sala, the California Supreme Court held that "[e]ven if the named plaintiff receives all the benefits that he seeks in the complaint, such success does not divest him of the duty to continue the action for the benefit of others similarly situated." (La Sala, supra, 5 Cal.3d at p. 871.) The La Sala court held that, rather than denying class certification, in such situations the trial court must determine whether the plaintiff will still fairly represent the class. If the plaintiff can no longer represent the class, the trial court must allow the plaintiff to amend the complaint to redefine the class or add a new qualified representative plaintiff. (Id. at p. 872.)
Similarly, in Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, the court found that a representative plaintiffs dismissal of his own claims did not terminate the class action. After filing suit on behalf of himself and a class, the plaintiff in Shapell voluntarily dismissed his individual claims without prejudice to his rights as an absent class member. (Id. at p. 1105.) Although the plaintiff amended his complaint to add a new named plaintiff before filing the dismissal, the amendment was ineffective because the plaintiffs did not first seek leave of court. (Id. at pp. 1105, 1107.) As a result, the class was left without a representative plaintiff, and the defendants argued that the trial court had no jurisdiction to entertain further proceedings since the original plaintiff had dismissed all of his individual claims. The Court of Appeal found that although the first plaintiffs voluntary dismissal of his individual claims left the putative class without a named representative, "the putative class remained extant, awaiting proper amendment of the complaint to add a new representative plaintiff. A dismissal by only some of the plaintiffs means the court is not divested of subject matter jurisdiction and the suit continues." (Id. at p. 1108.) The court held that because the plaintiff had dismissed his own claims but not the entire action, and the trial court had not yet made a class action certification determination, the trial court maintained jurisdiction to entertain a motion seeking leave to amend the complaint and add a new representative plaintiff. (Id. at pp. 1110-1111.)
Alch v. Superior Court (2004) 122 Cal.App.4th 339 (Alch), is also informative. In Alch, the plaintiffs asserted employment discrimination claims on behalf of a class. The trial court sustained a demurrer to the claims without prejudice to the plaintiffs right to plead individual discrimination claims. (Id. at p. 387.) The plaintiffs chose not to assert individual claims, but appealed the dismissal of the class claims. (Ibid.) On appeal, the defendants argued that because the plaintiffs did not assert any individual claims, their appeal of the trial courts ruling dismissing the class claims was moot. (Ibid.) The reviewing court rejected this argument and held that although the plaintiffs did not assert individual claims, they sought classwide injunctive relief and therefore could challenge the denial of class certification on appeal. (Id. at p. 388.)
None of these cases specifically address the factual situation presented here. Our concern is the jurisdiction of this court, rather than the jurisdiction of the trial court, and unlike in Alch, Cheenans complaint does not seek classwide injunctive relief. However, the above cases illustrate a general principle that while the possibility of a class action exists, the representative plaintiffs actions affecting only his individual claims may not necessarily extinguish the rights and legal interests of putative class members.
Federal courts have addressed whether an appeal of the denial of class certification is rendered moot when the plaintiffs individual claim ceases to exist. In United States Parole Commn v. Geraghty (1980) 445 U.S. 388 (Geraghty ), the United States Supreme Court explained that "the fact that a named plaintiffs substantive claims are mooted due to an occurrence other than a judgment on the merits does not mean that all the other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class." (Id. at p. 402.) The court thus held that "an action brought on behalf of a class does not become moot upon expiration of the named plaintiffs substantive claim, even though class certification has been denied," and the named plaintiff may prosecute an appeal of the class certification denial. (Id. at p. 404; see also Deposit Guaranty Nat. Bank v. Roper (1980) 445 U.S. 326, 340 [involuntary entry of judgment in plaintiffs favor did not prevent appeal of denial of class certification].) However, the court specifically did not decide whether a representative plaintiff who voluntarily settles all individual claims after a class action certification denial may appeal the adverse decision. (Geraghty, supra, 445 U.S. at p. 404, fn. 10.)
In Richards v. Delta Airlines, Inc. (D.C. Cir. 2006) 453 F.3d 525, 528-529, the court applied Geraghty and held that a representative plaintiff who had settled only her individual claims—and stipulated that the settlement would not apply to her class claims—could appeal the denial of class certification. The court found that the stipulation exempting class claims from the settlement "was sufficient for [the plaintiff] to retain a personal stake in the class claim, including the interest in shifting attorney fees and other litigation costs [to successful class litigants]." (Richards, supra, 453 F.3d at p. 529.)
Several other federal courts have found appeals moot where the representative plaintiff settled all claims, while also stating that if the plaintiff has released only individual claims, and has reserved an interest in the class litigation, or in some cases, specifically has reserved the right to appeal the certification denial, the appeal will not be moot. (Dugas v. Trans Union Corp. (5th Cir. 1996) 99 F.3d 724, 728-729; Shores v. Sklar (11th Cir. 1989) 885 F.2d 760, 762-764; cf. Anderson v. CNH U.S. Pension Plan (8th Cir. 2008) 515 F.3d 823; Toms v. Allied Bond & Collection Agency, Inc. (4th Cir. 1999) 179 F.3d 103, 105-107; Seidman v. City of Beverly Hills (9th Cir. 1986) 785 F.2d 1447 [finding appeal moot where plaintiff settled all claims but declining to decide whether named plaintiff who settles only individual claims may appeal an adverse certification order].)
The Geraghty courts reasoning is consistent with the California courts protection of the interests of putative class members. Cheenan dismissed only his individual claims, and the parties expressly limited their settlement to Cheenans individual claims, specifically exempting the class claims. Cheenans settlement of his individual claims did not render his appeal moot.
II. Applicable Legal Principles and 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[.] " (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) "Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of 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 turn, the `community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]" (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089 (Fireside ).)
We review a trial courts denial of class action certification for abuse of discretion. " `Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. . . . [Accordingly,] a trial court ruling supported by substantial evidence generally will not be disturbed "unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citations]. . . . Any valid pertinent reason stated will be sufficient to uphold the order." [Citations.]" (Sav-On, supra, 34 Cal.4th at pp. 326-327.)
III. Burden of Establishing Class Action Requisites
City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 453 (San Jose), expressly holds that any party may file a motion asking the court to determine whether a suit may proceed as a class action. Yet, Cheenan argues that because Countrywide filed what he deemed a "premature" and "preemptive" motion to deny certification, Countrywide—as the moving party—was required to prove that certification was not possible.
We need not and do not decide this issue about burden of proof to resolve this case. The result is the same, no matter who bore the burden of proof. The reason is that Countrywide offered some evidence and Cheenan offered none. A closer case would force us to confront this issue about burden of proof. We will leave this issue for a case in which it would make a difference. Here, it would make no difference.
Cheenan contends that requiring the plaintiff to establish the propriety of a class action before the plaintiff has seen fit to file a certification motion violates the public policy encouraging the use of class actions. Cheenan offers his case as an example of the purported inherent unfairness of allowing the defendant to initiate the certification determination. Cheenan claims Countrywides motion surprised him, he did not have the opportunity to complete discovery, and he anticipated expanding the size and scope of some of the potential classes of plaintiffs. These arguments are unpersuasive.
While California has a public policy encouraging class actions (Sav-On, supra, 34 Cal.4th at p. 340), California law specifically allows defendants to move the court for a class certification determination. (San Jose, supra, 12 Cal.3d at p. 453; In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1300-1301 (BCBG)]; Cal. Rules of Court, rule 3.764(a).) We recognize the potential for abuse in allowing the defendant prematurely to force the certification decision, particularly when the defendant is in sole possession of records or information relevant to class certification. But ultimately it is the trial court, not the parties, that determines the timing of the certification decision. The trial court has significant flexibility in managing class actions and may act within its discretion to ensure that the certification determination is neither premature nor invoked unfairly by defendants. (See Fireside, supra, 40 Cal.4th at p. 1083; Sav-On, supra, 34 Cal.4th at p. 339; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440 (Linder); BCBG, supra, at pp. 1300-1301.) For example, the trial court may postpone the certification determination where appropriate, and also may allow the plaintiff more time for discovery where it needs more facts to determine whether class treatment is appropriate. (See Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 836.)
Here, Cheenan did not seek a continuance of Countrywides motion to deny class certification. Although Countrywide filed its motion less than four months after Cheenan filed his first amended complaint, Cheenan had instituted the action almost a year earlier, and both defendants previously had filed motions to deny certification of the original proposed classes. After he filed the first amended complaint, Cheenan did not propound any discovery to Countrywide before the second certification hearing, and he engaged in only minimal discovery of Rapidigm. Although Cheenan claimed that he was unfairly surprised by Countrywides motion, in part because the discovery cutoff was many months away, the trial court stated at the hearing that it usually resolved certification motions within nine to 12 months of the filing of the complaint.
IV. The Trial Courts Rulings Were Correct
In ruling on certification, the trial court adopted the arguments Countrywide advanced, and made additional observations in its written order. Cheenan argues that the courts statement that it denied certification "for the reasons advanced by Countrywide" is too vague to explain the courts rationale for its ruling. We disagree. Countrywide made only three arguments in its motion, repeated the same arguments on reply, and did not assert additional arguments at the hearing. We therefore look to those reasons, as well as the rest of the courts written order, in our review of the ruling.
A. The Countrywide Classes
Three of Cheenans six proposed classes consisted of "Countrywide employees": the Countrywide Production Technology Employees Class; the Countrywide Non-Exempt Production Technology Employees Class; and the Countrywide Terminated Employee Class (collectively the Countrywide classes). The trial court accepted Countrywides argument that Cheenans claims were not typical of these classes claims. The court also noted that Cheenan admitted that Rapidigm, not Countrywide, employed him and was responsible for paying his wages. Although the trial courts additional comments in its written order were not specifically attached to any of the proposed classes, it appears that the court meant them to apply to the Countrywide classes collectively. Countrywide asserted typicality arguments about the first two Countrywide wage and hour classes, but the arguments apply equally to all three of the classes. We therefore consider the three putative Countrywide classes together.
Fair and adequate representation of the members of a class requires that the representative plaintiff actually belong to the class he claims to represent and that his claims are typical of those of the class. (First American Title Ins. Co. v. Superior Court (2007) 146 Cal.App.4th 1564, 1577 (First American); see also Stephens v. Montgomery Ward. (1987) 193 Cal.App.3d 411, 422; Petherbridge v. Altadena Federal Sav. & Loan Assn. (1974) 37 Cal.App.3d 193, 200-201.) "The requirement that the representative be a member of the class derives from the principle that joinder of plaintiffs in a class action should consist of those sharing `a well-defined "community of interest" in the questions of law and fact involved. [Citation.]" (La Sala, supra, 5 Cal.3d at p. 875.)
Countrywide submitted evidence to the trial court that Rapidigm paid Cheenan, processed his timesheets, and classified him as exempt or nonexempt, while Countrywide separately did the same for its own employees. Cheenan did not dispute this evidence but contended that which company paid and classified which subset of employees did not matter. The trial court could reasonably conclude on the record, and without deciding the merits of the case, that Cheenans claim against Countrywide, and the claims of direct Countrywide current or former employees, would significantly differ. Cheenans claims concerned the companies timekeeping and payment practices, the exempt/nonexempt classification of employees, and the timing of final payment to terminated employees. As a result, and contrary to Cheenans assertions, it does matter in this case that Countrywide handled these processes for its own employees, and did not do the same for the temporary employees working at its offices.
To the extent Cheenan held claims against Countrywide, those claims were inextricably linked to the relationship among defendants and Cheenan. As became clear in the proceedings below, significant—and likely predominant—questions particular to Cheenans claims would be whether defendants are joint employers, and the applicability of the joint employer doctrine to the Labor Code provisions at issue. These legal questions also may render certain factual questions highly relevant, such as the extent to which Countrywide controlled or directed the Rapidigm employees, or to what extent Countrywide controlled, was involved in, or knew about Rapidigms payment and classification processes. None of these questions would be relevant to the merits of the Countrywide employees claims. The trial court therefore reasonably could find that Cheenans claims against Countrywide were not typical of those of employees working directly for Countrywide, which meant that the community interest requirement was not satisfied. (Caro v. Procter & Gamble Co. (1998) 18 Cal.App.4th 644, 664; see also Fireside, supra, 40 Cal.4th at p. 1090.)
This case resembles those in which the plaintiff seeks to maintain a class action against multiple defendants, even though the plaintiff holds a claim against only one of the defendants. In those situations, courts have found that the plaintiffs claims are not typical of those of the class she seeks to represent, for "the typicality requirement is . . . not fulfilled merely because the plaintiffs allege that they suffered injuries similar to those of other parties at the hands of other defendants." (Baltimore Football Club, Inc. v. Superior Court (1985) 171 Cal.App.3d 352, 359; see also Simons v. Horowitz (1984) 151 Cal.App.3d 834, 845.) Substantial evidence supported the courts finding that Cheenans claims were not typical of those of the putative members of the Countrywide classes.
In sum, the trial court did not abuse its discretion in denying certification to the Countrywide classes on the ground that Cheenans claims were not typical of the claims of the Countrywide employees as a whole. Cheenan argues that the trial court erred by considering the merits of his joint employer allegations. However, as explained above, the trial court based its ruling on a distinct valid reason for denying certification of the Countrywide classes: that Cheenans claims were not typical of the Countrywide classes. Even if defendants are legally or factually "joint employers," this would be true only for the temporary Rapidigm employees working at the Countrywide site, not the employees Countrywide employed directly. The trial courts typicality rationale did not depend on the merits of Cheenans claims against Countrywide; instead, the court determined that Cheenans claims against Countrywide—viable or not—were not typical of those of the Countrywide employees he purported to represent.
B. The Rapidigm Production Technology Classes
The trial court adopted Countrywides arguments that the Rapidigm Production Technology Employee Class and the Rapidigm Non-Exempt Production Technology Employee Subclass (collectively Rapidigm wage/hour classes) were not sufficiently numerous, and that prosecuting the claims on a class action basis would not be superior to litigating them as individual claims. According to the Buhler declaration, Countrywide had only 11 Rapidigm employees between January 2002 and October 2006. Cheenan did not dispute this number. Cheenan argued he intended to amend his complaint to redefine and enlarge the Rapidigm wage/hour classes, but he never sought leave to amend, either before or after the hearing on Countrywides motion.
Code of Civil Procedure section 382 does not define what constitutes the "many" persons required to maintain a class action, and "[n]o set number is required as a matter of law[.]" (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934.) Our Supreme Court approved a class of only 10 members in the 1955 case Bowles v. Superior Court (1955) 44 Cal.2d 574. Later cases discussing the numerosity requirement upheld classes significantly larger than the Rapidigm classes. In Rose, the court found that a class of 42 members was sufficient. (Rose, supra, 126 Cal.App.3d at p. 934.) Similarly, in Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1030, the court found that a class of 28 members was large enough to survive as a class action.
Regardless of class size, the proponent of class certification must establish that class action will be a superior means of resolving the dispute. (San Jose, supra, 12 Cal.3d. at p. 460; Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 132-133.) Ultimately, the trial court must carefully weigh "the respective benefits and burdens of class litigation to the end that maintenance of the class action will only be permitted where substantial benefits accrue to the litigants and the court. [Citation.] . . . the substantial benefits analysis raises the question whether a class action is superior to individual lawsuits and other alternative procedures for resolving the controversy. [Citations.]" (Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 689; Linder, supra, 23 Cal.4th at p. 435; Caro, supra, 18 Cal.App.4th at pp. 658-669.) Although the class action often will be a superior device for wage and hour claims—even when the class is small (Gentry v. Superior Court (2007) 42 Cal.4th 443; see also Sav-On, supra, 34 Cal.4th at p. 340; Prince, supra, 118 Cal.App.4th at p. 1328)—"[n]ot all overtime cases will necessarily lend themselves to class actions." (Gentry, supra, 42 Cal.4th at p. 462.)
In this case, the trial court said in its ruling that Cheenan had no evidence of any similarly situated Rapidigm employees, despite having had almost a year to take discovery. The court could properly consider the lack of evidence of similarly situated class members in determining whether a class action would be superior to individual suits. For example, Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, affirmed a trial courts denial of class certification that was based in part on the courts finding that no one other than the plaintiff claimed to have been injured by the defendants practices. (Id. at pp. 1238-1239.) The Court of Appeal found that "the expense and burden of a class action, balanced against an adjudication of plaintiffs claims, could properly be considered a factor against certification where multiple claims — in the absence of certification — appeared unlikely." (Id. at p. 1239.) Similarly, in Caro, the court observed: " `there can be no class certification unless it is determined by the trial court that similarly situated persons have sustained damage. There can be no cognizable class unless it is first determined that members who make up the class have sustained the same or similar damage. [Citations.]" (Caro, supra, 18 Cal.App.4th at p. 664.)
In the absence of evidence of any kind to suggest that the Rapidigm classes contained individuals similarly situated to Cheenan, and in the face of undisputed evidence that the Rapidigm wage/hour classes would at most consist of 11 people, the trial court reasonably could weigh the benefits and burdens of class action litigation and determine that allowing Cheenan to proceed on a class basis on behalf of the Rapidigm wage/hour classes would not offer a substantial benefit to the litigants or the court. Although policy considerations often warrant that wage and hour claims be prosecuted on a class action basis, we cannot conclude on the record before us that the trial court used improper criteria or made erroneous legal assumptions in denying class certification to the Rapidigm wage/hour classes.
C. The Rapidigm Terminated Employee Class
The trial court denied certification of the Rapidigm terminated employee class because Cheenans own claims were moot. The undisputed evidence was that Cheenans claims indeed were moot.
Cheenan argues that he should have had an opportunity to amend his complaint to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative. He argues as follows. " `A prospective defendant is not allowed to avert a class action by "picking off" prospective plaintiffs one-by-one. Thus, precertification payment of the named plaintiffs claim does not automatically disqualify the named plaintiff as a class action representative. [Citations.] " (Ticconi v. Blue Shield of California Life & Health Ins. Co. (2008) 160 Cal.App.4th 528, 548 (Ticconi).) Rather, when the defendant satisfies the named plaintiffs claim, the trial court must determine whether the named plaintiff will continue to protect the class fairly and adequately. (La Sala, supra, 5 Cal.3d at pp. 871-872.) If the court "concludes that the named plaintiffs can no longer suitably represent the class, it should at least afford plaintiffs the opportunity to amend their complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative. [Citations.]" (Id. at p. 872; see also Ticconi, supra, 160 Cal.App.4th at pp. 547-548; CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 288; First American, supra, 146 Cal.App.4th at pp. 1574-1575; Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582, 595-596 [accord under the Consumer Legal Remedies Act].)
Cheenan never sought to present evidence that he could continue adequately to represent the class, or to amend his complaint to redefine the class or to add new named plaintiffs. He had the opportunity to do so, and indeed an invitation to do so from the defense briefing. Countrywide made the following statements in its reply brief on its motion to deny class certification. Countrywide acknowledged that, "while it may be appropriate at some later time for Plaintiff to conduct discovery to find a sufficient class representative, if none can be identified otherwise, the Court need not decide that discovery issue now. Instead, the Court can address that issue at the appropriate later time, if it becomes necessary." (Italics added.) Countrywide likewise noted that "discovery has been ongoing for many months and . . . Plaintiff has failed to explain what he plausibly might uncover in discovery that would make him an adequate class representative for any of the putative classes." Countrywide stated that it did "not seek dismissal of the action at this time. However, should Plaintiff fail to identify a suitable class representative, Countrywide may seek such a dismissal at the appropriate time." (Italics added.) Countrywide urged the court to grant its motion, noting that case law required that, "if the Plaintiff is deemed inadequate, he should have a reasonable opportunity to identify a substitute plaintiff to act as class representative. But [this case law does] not mandate denial of a valid motion to deny certification predicated on the mootness of the particular class representative plaintiffs claim." (Italics added.) Countrywides reply brief also noted that, "[i]f Plaintiff properly seeks to later amend the complaint, then the issue of whether the applicable classes as amended are sufficiently numerous and, thus, appropriate, can be determined then." (Italics added.)
Given these defense statements, Cheenan was free to seek further discovery, to identify a substitute class representative, and to amend his complaint to redefine classes. Cheenan never did so. Cheenans failures to act on the invitations in the defense briefing suggest he was not optimistic about finding either a substitute plaintiff or a better class definition. In any event, Cheenan now cannot fault the trial court for failing to give him opportunities that Cheenan possessed but never sought to exploit.
DISPOSITION
We affirm the trial courts ruling. The plaintiff is to bear the costs of appeal.
We concur:
COOPER, P. J.
FLIER, J.