AYALA v. ANTELOPE VALLEY NEWSPAPERS

Respondent’s Petition for Review

Cal.November 26, 2012

S206874...cor No. SUPREME COURT MARIA AYALAet al., FILED Plaintiffs and Appellants, NOV 26 2012 Me Frank A. McGuire Clerk ANTELOPE VALLEY NEWSPAPERS,INC. Deputy Defendant and Respondent. After a Decision by the California Court of Appeal, Second Appellate District, Division Four Case No. B235484 Appeal from the California Superior Court, Los Angeles County Case No. BC403405 (Judge Carl J. West) PETITION FOR REVIEW Sue J. Stott, State Bar No. 91144 PERKINS COIE LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: 415-344-7000 Facsimile: 415-344-7050 SStott@perkinscoie.com Eric D. Miller, State Bar No. 218416 PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206-359-8000 Facsimile: 206-359-9000 EMiller@perkinscoie.com Attorneys for Defendant-Respondent IN THE CALIFORNIA SUPREME COURT No. MARIA AYALAet al., Plaintiffs and Appellants, Vv. ANTELOPE VALLEY NEWSPAPERS,INC. Defendant and Respondent. After a Decision by the California Court of Appeal, Second Appellate District, Division Four Case No. B235484 Appeal from the California Superior Court, Los Angeles County Case No. BC403405 (Judge Carl J. West) PETITION FOR REVIEW Sue J. Stott, State Bar No. 91144 PERKINS COIE LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: 415-344-7000 Facsimile: 415-344-7050 SStott@perkinscoie.com Eric D. Miller, State Bar No. 218416 PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206-359-8000 Facsimile: 206-359-9000 EMiller@perkinscoie.com Attorneys for Defendant-Respondent TABLE OF CONTENTS PAGE I, ISSUES PRESENTED ......cccccsescssssssessesecssesssesessesssssssresstescecseseecececce. 1 II. INTRODUCTION AND STATEMENTOF THE CASE.................. 1 A. Introduction oo... eccccccecsssssssssesesesesseseassvssssasetereeseceeececececee. 1 B. Facts and Proceedings Below.......ccccccccssecssssscsesesseseecceceeeeccccec. 4 I. THE COURT SHOULD GRANT REVIEW TO RESOLVE CONFLICTS IN PUBLISHED AUTHORITY AND TO CORRECT THE LOWER COURT’S ERRONEOUS INTERPRETATION OF THE BORELLO INDEPENDENT CONTRACTORTEST.....cccceccsssscssssssssssessssestesessseseaseceseeececeseecescecc. 8 A.. Review Is Required to Resolve the Conflict Between the Decision Below and the Decisions ofthe First Appellate District in Sotelo and the Fourth Appellate District 10 Ali ..cececccccccssecesccccesssssesesvscsesvasssseeseeseeceeeesesceccen. 9 1. The Borello independent contractor test requires balancing multiple intertwined factors......................... 9 2. Classcertification is appropriate only when commonissues predominate 0.0.00... ccecssceseesceeseeeeee 10 3. The opinion below conflicts with the decisions in Sotelo and Ali regarding the nature and application of the Borello secondary factors.............. 12 B. | Review Is Required to Correct the Court ofAppeal’s Misinterpretation of the Borello Secondary Factors............. 15 1. The Court below incorrectly interpreted the | secondary factors to focus on the whether the “type of work”at issue is typically done by an independent contractor or an employee ......-.ceesecssees-. 16 2. The lower Court’s holding regarding class Certification Warrants LEVIEW ....ccececccsccecesecseccccccscceeese. 20 TV. CONCLUSIONooeseecesssssesssessssssessssssesessucssassuesasarecssssecsstsssseseceeeseess 21 TABLE OF AUTHORITIES PAGE CASES Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333.0... ccccecssceseessesseseessscsscsecssecseseeesees passim Becerra v. The McClatchy Co. (Fresno Cnty. Sup. Ct., No. 08 CECG O44 11 KCK) oocecessseneessesseceseeeessesssssessesseessesesssessecssecsessesenseneenens 15 Beckerv. Industrial Accident Com. (1931) 212 Cal. 526... ececescsseecnsesseeseseeseeseesseesaecessessessesecsesaasaeeeeees 18 Block v. Major League Baseball (1998) 65 Cal.App.4th 538.00... ccccccccsesesssessesseseeesscsssecesssesessecsseseenees 1] Brinker Rest. Corp. v. Super. Ct. (2012) 53 Cal.4th 1004 ooo ccescesseessssseessssscsseeessecsseseseceeenes 10, 11, 20 Brown v. NLRB (9th Cir. 1972) 462 F.2d 699oiccescecsessessseccseeseeesseseeseeeseeseeseessseseenes 18 Cable v. Perkins (ILApp.Ct. 1984) 459 N.E.2d 275 ooeccccceccscccceseeesseeseeseecessessseseseeesees 18 Cal. Emp. Com. v. L.A. Downtown Shopping News Corp. (1944) 24 Cal.2d 421occecccsssessneeceeseeseeeeceeseeseaesaeceseecseeecesseeseeeaes 18 Chin v. Namvar (2008)166 CalApp.4th 994... ccsscccsessesscssessecssessesseeeeeseeeessees 18, 19 City ofSan Jose v. Super. Ct. (1974) 12 Cal.3d 447oo eccccsccenseseseeeseeeeenesecesesesecesssecsteesecsessaeenseeeaes 11 Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72.0... cccccecccsssssesscessesseecesssseeseaseseesseeseeesseeas 17 Espejo v. The Copley Press Inc. (San Diego Cnty. Sup. Ct., pending, No. 37-2009-00082322-CU- OE-C TL) ooo ceecececcececersnecsseesseceaeesacnecesaeeceeseseaeseesaeecessseaseseneeeenaeeseeeeaeeas 15 Fleming v. Foothill-Montrose Ledger (1977) 71 Cal.App.3d 681 oo... ccccccsseceseceeeeeeeeeneeeeeeieesaeeeseietaeeeeseeeeress 18 -ii- Grant v. Woods (1977) 71 Cal.App.3d 647.....cccccccccccscssssssessececessesecsssseeseesessesescsscesscass 18 Great W. Shows v. Cnty. ofL.A. (2002) 27 Cal.4th 853 ooecceccccesscscssesscsssessssccssssscsecsscevscsesaeaterersaes 15, 16 Harper ex rel. Daley v. Toler (Fla. Dist. Ct. App. 2004) 884 So.2d 1124 voceceesesceseeseeceeeseees 17 Hartford A. & I. Co. v. Industrial Accident Com. (1932) 123 Cal.App. U5 1... ccccccssssscsscseseescsecscsssesscsssscscscesvevseeeseeeeseees 18 Keith v. News & Sun Sentinel Co. 667 So. 2d 167 (Fla. 1995)... cecccccsecccscescesescscseeseesesesesessessaecseeceseees 17 LaFleur v. LaFleur (lowa 1990) 452 N.W.2d 406 oo... ccccccccccccesecsecssccecerseccssseeessscecaceceeees 18 Lara v. Workers’ Comp. Appeals Bd. (2010) 182 CalApp.4th 393.0... cccccccscsseessscscseescrsscsesstssceseverenees 18, 19 Larson v. Hometown Communications, Inc. (Neb.Ct.App 1995) 526 N.W.2d 691 vecssccceeeesssssseseresssniessesetsniaseessase 17 Lewiston Daily Sun v. Hanover Ins. Co. (Me. 1979) 407 A.2d 288 oo. cccccccccesscessctsescssccssnscsecsscsssuecsetsessestarenees 18 Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429 oocecsseesssesssssescscsecsecseessesscescscscesssssveseaseavees 11 Marvin v. Marvin (1976) 18 Cal.3d 660...cicccccccsecccessscccsssceccssesrscecesusestusserestencrescesses 9 Millsap v. Fed. Express Corp. (1991) 227 CalApp.3d 425 ..o..ececcceccessssssssessesecseseseescescscscsssessteeseesaaes 18 Narayan v. EGL, Inc. (N.D. Cal. Sept. 7, 2012, Case No. C-05-04181 RMW) 2012 WL A004621 oeee ceceeseeseeeeeeeceeeeseesseesessessessssecseesscscsessesseeseesesecsteateass 13, 14 Neve v. Austin Daily Herald (Minn.Ct.App. 1996) 552 N.W.2d 45 oc cescccseseesseescsessecsssscsesesesesees 18 Rose v. City ofHayward (1981) 126 CalApp.3d 926.00... ccccccsssesessecssessesscsscessesseseecsessessesseeeecns 11 - ill - Ross v. Post Publ’g Co. (Conn. 1943) 29 A.2d 768... c.cccccccssccsessssssssssseseceesessssssssasssseessevssseseseeees 18 Rumpke v. Rumpke Container Serv., Inc. (S.D.Ohio 2001) 205 F.R.D. 204 vooccececcccccccssecessessestsssssesssscseesereeseseees 19 S..Cal. Chapter ofAssociated Builders & Contractors, Inc. v. Cal. Apprenticeship Council (1992) 4 Cab.4th 422 cccccccccssssscssesessssececsesessesussessesessersesaversecevees 15 S.G. Borello & Sons v. DepartmentofIndustrial Relations (1989) 48 Cal.3d 341.cccccccsccsscsessssssssesecessesasstsessessescarseseseeees passim Salgado v. The Daily Breeze, et al. (Los Angeles Cnty. Sup. Ct., pending, No. BC458074) oo. .cccscsscsccseccseees 15 Sawin v. The McClatchy Co. (Sacramento Cnty. Sup. Ct., No. 34- 2009-00033950-CU-OE-GDS)...eccccccscsscssssessecseatseseststsssessssessseseseseseees 15 Shamblin v. Brattain (1988) 44 Cal.3d 474.ccccccccsssssssssssescsssucseevacansucasarsssucasseavsvevessevevevene 11 Sotelo v. MediaNews Group, Inc. (2012) 207 CalApp.4th 639.00... ccsssssesseeseesesesessessscstscsescsssees passim Taylor v. Industrial Accident Com. (1963) 216 Cal.App.2d 466..0....ccccccccccssssssssesscessvsscecsssesssetsvacstsreesecesece 18 Toland v. Sunland Hous. Group., Inc. (1998) 18 Cal4th 253 woecccessseseecesecsseeeesenseotevssseesenecseestseseneesess 9 Torres v. Reardon (1992) 3 CalApp.4th 831 ....ccccccccccsscescssscecsceseeseetscarscacavseeeecsesees 18, 19 Venango Newspapers v. Unemployment Comp. Bd. ofReview (Pa.Commw.Ct. 1993) 631 A.2d 1384 ....ccccccsssececssecsestsssescstesesessecesece 18 Walker v. Bankers Life & Cas. Co. (N.D.IIl. July 28, 2008, Case No. 06-C-6906) 2008 WL 2883614........ 19 Wash. Mut. Bank, FA v. Super. Ct. (2001) 24 Cal4th 906 o..eecccecccssssssessssssssssssssessessssesserststsesssacsvevassesees 11 STATUTES California Labor Code § 226.8 ...c.ccccccssssscscsssssessesssessssescscseseesveceesesees 4,21 -iv- RULES OF COURT California Rules of Court, rule 8.500(b)(1) ....cccececesesseecsceseeeeeceeees 8,9, 15 I. ISSUES PRESENTED 1. Whether the Court belowerred in holding, in conflict with Sotelo v. MediaNews Group, Inc. (2012) 207 Cal.App.4th 639 (Sotelo), and Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333 (A/i), that a court may certify a class of individuals claiming to be employeesrather than independent contractors even whenit finds that the secondary factors in the independent contractor test of S.G. Borello & Sons, Inc. v. Dept. ofIndustrial Relations (1989) 48 Cal.3d 341 (Borello), vary materially among the members ofthe putative class. 2. Whether the Court below erred in holding that the secondary factors in the Borello test pertain to the generic type of work being performed, rather than the specific features of the relationship between the individual performing the work and the putative employer. Il. INTRODUCTION AND STATEMENT OF THE CASE A. Introduction This Court’s review is required to resolve a direct conflict between the published opinion of the Second Appellate District in this case and the decisions of the First Appellate District in Sotelo, supra, 207 Cal.App.4th 639, and the Fourth Appellate District in Ali, supra, 176 Cal.App.4th 1333. In all three cases, the plaintiffs were independent contractors whoalleged that they were misclassified as contractors and were instead employees. They claimed to be entitled to damagesfor various alleged Labor Code violations. In each case, thetrial court denied the plaintiffs’ motion to certify a class, ruling that individual issues predominated because the multi- factor independent contractor analysis called for by this Court’s opinion in Borello, supra, 48 Cal.3d 341, required examination of the characteristics of each individual worker’s relationship with the putative employer. In Sotelo and Ali, the Courts of Appeal affirmed the denial of class certification. They held that variability in the so-called “secondary” -l- independent contractor factors—that is, the factors, other than the principal’s right to control the performanceofthe work, that determine whether a worker is an employee or an independent contractor—precluded class certification because “even if other factors were able to be determined on a class-wide basis, [the variant secondary] factors wouldstill need to be weighed individually, along with the factors for which individual testimony would be required.” (Sotelo, supra, 207 Cal.App.4th at p. 660; accord Ali, supra, 176 Cal.App.4th at pp. 1349-52.) This Court denied review in Ali, and, more recently, it denied review in Sotelo. In this case, interpreting Borello the same waythat Sotelo and Ali have,the trial court declined to certify a class. The Second Appellate District, however, reversed. The Court made noeffort to explain how the trial court had abusedits discretion. It also made noeffort to distinguish Sotelo or Ali ontheir facts, nor could it plausibly have doneso,as all three cases involve similar allegations and similar variations among the members of the putative classes—inthe case of Sotelo, strikingly so, as both Sotelo and this case involve newspapercarriers who contractto deliver daily newspapers. The Court recognized that—as in Sotelo and Ali—the evidence bearing on the secondary factors varied across the proposedclass. However, the Court viewed the variations as immaterial because,it said, “the focus of the secondary factors is mostly on thejob itself, and whether it involves the kind of work that may be done by an independentcontractor or generally is done by an employee.” (Ct. App. opinion, dated Sept. 19, 2012 (“Opn.”) at p. 19.) Reasoning that the natureof thejobitself is a common question, the Court concludedthat the entire independent contractor analysis therefore presented a “common question”sufficient to warrantclass certification. The Court below did not acknowledgethe conflict with Sotelo and Ali, nordid it substantively address those cases. Indeed,it scarcely -2- acknowledgedtheir existence, dismissing them in a footnote as involving “facts and positions unique to the parties.” (Opn.at p. 18, fn. 9.) Nor did the Court cite any authority for its conclusion regarding the ‘focus ofthe secondary factors,” which reflects a misinterpretation of Borello andis contrary to settled law establishing that the focus of those factors is on the nature ofthe specific service relationship, not the generic type of “work”at issue. With the recent publication of the opinion below, Californiatrial courts considering class certification motions in independent contractor cases—and manysuch cases are pending—are faced with irreconcilable published opinions: Sofe/o and Ali, which say that variation in the secondary factorsis critical to the analysis of independent contractor status and weighsagainstcertification, and the decision below, which says that such variation is irrelevant because the real focus is on the nature of “the job” (whatever that may mean in any particular context), rather than the entirety of the relationship between the service provider and the service recipient. Indeed, the conflict affects not only putative class actions but also all cases involving a challenge to any independent contractor designation. In every such case, the court must now decide whether to charge the jury with examiningthe entire relationship betweenthe parties (as Borello requires and Sotelo and Ali reiterate) or instead to instruct the jury to decide whether “the job .. . involves the kind of work that may be done by an independent contractor, or generally is done by an employee” (as the Court below held). (Opn.at p. 19.) The Court gave no guidanceas to how trier of fact would ascertain contractor versus employee “work” (for example, with the use of experts, by individualized fact analysis or some other means). Worsestill, the lower Court’s misinterpretation of the Borello test will create grave uncertainty both for businesses seeking to structure their -3- relationships with individuals who provide services and for service providers seeking to establish independent businesses. The Court below did not explain how to determine whether a job “involves the kind of work that may be done by an independent contractor, or generally is done by an employee,” nor did it say what kind of evidence could be introduced onthat question, or whether expert testimony would be required. Because the Court’s test is entirely novel, existing precedent provides no guidance. The uncertainty will have serious consequences because misclassification of an employee as an independent contractor can result in significant penalties understate and federal law. (See, e.g., Cal. Lab. Code § 226.8 {providing for penalties of up to $25,000 per violation].) Indeed, the vagueness ofthe lower Court’s newly adopted test, coupled with the large penalties for those whoare found to have misclassified employees, raises serious concerns of lack offair notice. The Sofe/o and Ali holdings are correct; the holding of the Court below is wrong. The error made by the decision below would be important enough for this Court to correct evenif it did not create a conflict in the law. In light of the conflict, review by this Court is even more important and should be granted. B. Facts and Proceedings Below 1. Plaintiffs are former newspaper delivery contractors or “carriers” of the Antelope Valley Press (“AVP”), a daily newspaper in Palmdale, California. They filed this lawsuit on behalf of a putative class of carriers, alleging that they were misclassified as independentcontractors and that, as a result of the misclassification, AVP violated various statutes. Plaintiffs moved for class certification. AVP opposed the motion. 2. The trial court denied class certification, finding that individual issues predominated with respect to the threshold misclassification question. ( Los Angeles Super. Ct. Ruling and Order Re: Plaintiff's Motion -4- for Class Certification, dated Aug. 19, 2011, Appellants’ Appendix (“AA”) at volume (“vol.”) 19, pp. 4381-91.) The court emphasized that “no commonality exists regarding the right to control, and heavily individualized inquiries are required to conduct the ‘controltest’” as part of the analysis ofplaintiffs’ status. (Jd. at p. 7.) In particular, the trial court noted that individual issues predominated on, inter alia, “who performsthe services at issue”—someofthe carriers used helpers or substitutes from time to time, others on a regular basis,still others notat all (ibid.), “whencarriers are to perform their services”—someofthe carriers’ contracts specified a time at which papers were to be picked up, while others did not (ibid.), “how the carriers perform their services”—somecarriers received training from AVP, while others did not, and some were required to bag newspapers, while others were not (id. at vol. 19, pp. 4384-85), and “the contacts carriers had with AVP subscribers”—some carriers provided personal contact information to subscribers and had many contacts with subscribers, while others had few such contacts(id. at vol. 19, p. 4386), whether“carriers delivered other publications, including competing newspapers, when delivering for AVP”—some carriers did, others did not(id. at vol. 19, p. 43 88), and whethercarriers “created a business entity and/or bank - accounts for their delivery work”(id. at vol. 19, p. 4389). 3. The Court of Appealaffirmed in part and reversed in part. The Court affirmed thetrial court’s order to the extent that it denied certification of claims based onovertime-and mealandrest breaks. (Opn.at pp. 20-21.) It reversed thetrial court’s determination that Plaintiffs had failed to meet their burden of proving that commonissues predominated with respectto misclassification, and it remanded with instructions that the trial court certify a class unlessit identified some other reason not to do so. (/d. at pp. 17-20, 22.) | The Court of Appeal acknowledgedthat, during the class period, AVPused basic forms of written contractor agreements with carriers that were broadly similar amongcarriers but that also contained some terms specific to each carrier; the record showed that those terms were sometimes subject to individual negotiation. (Opn.at p. 9.) The Court also discussed other documentsthat, Plaintiffs alleged, evinced AVP’s right to control the carriers’ work. Asthetrial court had noted, the record reflected divergent testimony on whether the documents represented mandates or were merely suggestions. (/d. at pp. 11-12.) The Court next discussed the evidence of AVP’s conduct that, according to Plaintiffs, showed AVP’sright to control their work. It noted that AVP’s evidence showed that manyofthe alleged indicia of control varied from carrier to carrier. (Opn. at pp. 12-15.) Turning to the “secondary factors” in the Borello test, the Court of Appealnoted that Plaintiffs had submitted purportedly “common”evidence related to the secondary factors, while AVP submitted evidence showing a lack of commonality as to those factors. The Court of Appeal described the evidenceas follows: (1) somecarriers delivered other publications (such as the Los Angeles Daily Newsor the Los Angeles Times) at the same time they delivered for AVP; (2) somecarriers have set up formalbusiness entities to conduct their delivery business, or consider their delivery work to be an independentbusiness; (3) some carriers provide their contact information to subscribers and/or deal directly with subscribers regarding complaints or special requests; (4) some carriers have other jobs in addition to their delivery work; (5) somecarriers choose to use AVP’s facilities to assemble and fold their newspapers while others do not; (6) somecarriers purchase supplies from AVP but others choose not to; (7) some carriers take advantage of opportunities to increase their compensation by generating new subscribers, taking on additional routes, using substitutes or helpers efficiently, or avoiding customer complaint chargesby re-delivering; (8) somecarriers delivered foras little as one day while others delivered for many years; and (9) many contractors, unlike the namedplaintiffs, understood they were independent contractors and intended to be independentcontractors. (Opn.at p. 16.) In reviewing that same evidence, thetrial court had correctly concluded that individual issues predominated because of the variations in the carriers’ work experiences andin their interactions with AVP. (AA at vol. 19, pp. 7381-91.) But the Court of Appeal concluded that the record instead reflected disputes as to the import of evidence commontoall class members. (Opn.at pp. 17-19.) With regardto the right to control, for example,the Court stated that AVP’s evidence that “the waythat the carriers accomplished their work varied widely” constituted evidence of an overall lack of control, rather than evidence that the control question needed to be assessed on a carrier-by-carrier basis. (/d. at p. 19.) Similarly, the Court held that the “focus of the secondary factors is mostly on the job itself, and whether it involves the kind of work that may be done by an independent contractor, or generally is done by an employee,” andthat individual “choices” made by an employee with respect to the secondary factors did not affect the carrier’s “employee status.” (/bid.) The Court therefore concluded that AVP’s evidence of material variability in the secondary factors simply provided evidencethat “the type of work involved often is done by independent contractors” but did not establish the predominance of individual issues. ([bid.) 4, AVPfiled a petition for rehearing, which the Court of Appeal denied. WI. THE COURT SHOULD GRANT REVIEW TO RESOLVE CONFLICTS IN PUBLISHED AUTHORITY AND TO CORRECT THE LOWER COURT’S ERRONEOUS INTERPRETATION OF THE BORELLO INDEPENDENT CONTRACTOR TEST Leftunresolved, the conflict between the published opinion below and Sotelo and Ali—as well as the lower Court’s mischaracterization of the Borello secondary factors—will result in inconsistent application of law and confoundtrial courts and California businesses attempting to apply the independentcontractor analysis that this Court prescribed in Borello. For tworeasons, review is necessary “to secure uniformity of decision” and “to settle an important question of law.” (See Cal. Rules of Court, rule 8.500(b)(1).) First, the result reached by the Court below is directly contrary to the First Appellate District’s opinion in Sote/o and the Fourth Appellate District’s opinion in Ali, both of which correctly held that variations in facts relevant to even someof the secondary factors can render individual issues predominant, making classcertification inappropriate. Review is necessary to resolve the conflict between the incorrect conclusion of the Court below and the opinions in Sotelo and Ali. Second, the decision below is also inconsistent with this Court’s decision in Borello. Based on an incorrect interpretation of Borello, the Court of Appeal stated that “the focus of the secondary factors”in the Borello test “is mostly on the job itself, and whetherit involves the kind of workthat may be done by an independentcontractor or generally is done by an employee.” (Opn.at p. 19.) Without citing any authority, the Court also held that variations among membersofthe putative class with respect to manyofthe secondary factors were irrelevant because individual service providers’ “choices” do not affect the secondary factors analysis. (/bid.) From those faulty premises, the Court reasonedthat “[a]ll of the [secondary] factors may be determined based upon commonproof.” (/bid.) Under Borello, howeverthe secondary factors explore the nature ofthe particular service relationship—notthe generic “type of work”at issue— oeand each worker’s “choices” are essential to that analysis. The lower Court’s erroneousinterpretation of Borello threatensto create great confusion in an area of the law thatis of critical importance to businesses and service providers. This Court’s review is warranted. A. Review Is Required to Resolve the Conflict Between the Decision Below and the Decisionsof the First Appellate District in Sotelo and the Fourth Appellate District in Ali This case, Sotelo, and Ali all involve putative classes of allegedly misclassified independent contractors. In each case, the threshold question is whether—upon application of the Borello test to the record onclass certification—plaintiffs met their burden of demonstrating that the classification question was amenable to commonproof. Although the material facts in the cases are similar—Sotelo, like this case, involved newspaperdelivery contractors—the Court below and the Courts in Sotelo and A/i nevertheless reached divergent results because oftheir fundamentally different holdings regarding the secondary factors. This Court’s review is therefore necessary to “secure uniformity of decisions.” (Cal. Rules of Court, rule 8.500(b)(1); see, e.g., Toland v. Sunland Hous. Group., Inc. (1998) 18 Cal.4th 253, 264; Marvin v. Marvin (1976) 18 -‘Cal.3d 660, 664-65.) 1. The Borello independent contractor test requires balancing multiple intertwined factors In Borello, this Court held that the determination of independent contractor status requires application of a multi-factor test that considers not only a service recipient’s right to control the work performed by the putative employee butalso a host of “secondary factors” designed to flesh out the nature ofthe service relationship.’ (See Borello, supra, 48 Cal.3d at p. 351, fn. 5 [control of work details is not necessarily the decisive test for independentcontractorship”] [internal quotation marks omitted].) As the Court explained, a multi-factor test is used because service relationships come in many forms, and consideration of the abstract “right to control” alone does not give the factfinder a complete view ofthe relationship. (/d. at p. 350.) TheCourt emphasized that the secondary factors “cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (/d. at p. 351 [internal quotation marks and citation omitted].) In other words, the Borello secondary factors require a factfinder to consider a// relevant aspects ofa service relationship in order to determine whether a workeris an independent contractor of an employee. 2. Class certification is appropriate only when common issues predominate A plaintiff seeking class treatment of a claim must demonstrate the existence of“a well-defined community ofinterest,” which requires showing predominant common questions of law or fact. (Brinker Rest. ' Those secondary factors include (1) whetherthere is a rightto fire at will without cause; (2) whether the alleged employee is engaged in a distinct occupation or business; (3) the kind of occupation; (4) the skill required; (5) who supplies the instrumentalities, tools, and the place of work; (6) the duration ofthe relationship; (7) the method of payment; (8) whether the workis a regular and integral part of the business of the principal; (9) the parties’ belief as to the nature of the relationship; (10) whether the classification of independentcontractors is bonafide; (11) the contractor’s degree of investment and whether he or she holds himself out as an independentbusiness; (12) the contractor’s use of helpers, employees, or replacements; (13) the contractor’s opportunity for profit and loss depending upon managerial skill; and (14) whether the service rendered is an integral part of the alleged employer’s business. (Sotelo, supra, 207 Cal. App.4th at pp. 656-57 [citation omitted]; see also Borello, supra, 48 Cal.3d at pp. 350-51.) -10- Corp.v. Super. Ct. (2012) 53 Cal.4th 1004, 1021 (Brinker).) Common questions do not predominate whentheir resolution depends upon answering individual questions,“even though there may be many common questions of law.” (Block v. Major League Baseball (1998) 65 Cal.App.4th 538, 542 [internal quotation marksandcitation omitted].) To obtain class certification, a plaintiff thus must raise common questions and show that those questions are answerable through commonproof. (Wash. Mut. Bank, FA v. Super. Ct. (2001) 24 Cal.4th 906, 913-14; see also Rose v. City of Hayward(1981) 126 Cal.App.3d 926, 933 [plaintiff showed existence of a commonquestion that can be answered “onthe basis ofa single set of facts applicableto all [class] members.”]; City ofSan Jose v. Super. Ct. (1974) 12 Cal.3d 447, 460.) Commonissues also do not predominate where liability is contingent, at least in part, on facts particular to individual © claimants, and “proofof. . . liability would have had to continue in an employee-by-employee fashion.” (Brinker, supra, 53 Cal.4th at pp. 1051- 52.) | “Becausetrial courts are ideally situated to evaluate the efficiencies and practicalities of permitting groupaction, they are afforded great discretion in granting or denying certification.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) A classcertification order may be disturbed only if the trial court “exceeded the bounds of reason,” and, underthat standard, “[w]hen two or more inferences can reasonably be deduced from _ the facts, the reviewing court has no authority to substitute its decision for that ofthe trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478- 479.) -ll- 3. The opinion below conflicts with the decisions in Sotelo and Ali regarding the nature and application of the Borello secondaryfactors a. In Sotelo, the First Appellate District faithfully appliedthis Court’s instruction that courts must consider both the right-to-controltest and the secondary factors. The record in that case reflected variation as to at least four secondary factors: “(1) whether the one performingservicesis engaged in a distinct occupation or business; (2) the method of payment; (3) whetheror not the parties believe they are creating an employer- employeerelationship; [and] (4) the hiree’s opportunity for profit or loss depending on his or her managerial skill.” (Sotelo, supra, 207 Cal.App.4th at p. 657-58.) Based on that variation, the Sotelo court affirmed thetrial court’s ruling that the threshold classification question was not amenable to class treatment. As the Court explained, “[e]ven though the [trial] court found variability amongthe class in only a few ofthe factors,” it correctly determinedthat “the multi-factor test ‘requires that the factors be examined together.’” (Cd. at p. 660.) Thus, “even if other factors were able to be determined on a class-widebasis, those factors wouldstill need to be weighed individually, along with the factors for which individual testimony would be required.” (/bid.) Under Sotelo, a trial court does not abuseits discretion by denying certification if it concludes that variability among some of the secondary factors will require individual testimonyattrial. b. In Ali, the Fourth Appellate District similarly affirmed the denial of certification of a class oftaxi drivers where, amongother things, some (but not all) class memberstestified that they supplied their own tools, held themselves out as independent businesses, and understood themselves to be independent contractors. In light of those factual variations among the class, the Ali Court held that the trial court had “reasonably rejected the argumentthat a single set of facts predominate[d]’’; instead, “the testimony -12- of putative class members would be required on the issues of employment.” (Ali, supra, 176 Cal.-App.4th 1333 at p. 1350.) Under the applicable abuse of discretion standard, nothing more wasrequiredto affirm the trial court’s denial ofclass certification, even if “[{p]erhaps anothertrial judge considering the matter in the first instance would have allowed class treatment.” (/d. at p. 1351; see also Narayan v. EGL, Inc. (N.D. Cal. Sept. 7, 2012, Case No. C-05-04181 RMW) 2012 WL 4004621, *7 [applying California law and concluding that, given variation in “distinct occupation” secondary factor, individual issues predominated because“[t]o ignore the differences in defendants’ operations andcertify a class would be tantamount to making a substantive findingthat this evidence cannot change the outcome” which would improperly constitute “prejudging the weight of the evidence.”’]) c. The Court below was confronted with precisely the same issue as in Sotelo and Ali—whetherthetrial court abusedits discretion by refusing to certify a class because the need for individual inquiry into the secondary factors meant that common questions of law and fact do not predominate. Asin Sotelo, the trial court here had identified variability among putative class members with respect to some secondary factors; indeed, even more factors than in Sotelo. (See, e.g., AA at vol. 19, p. 4393 [“The evidence also showsthat somecarriers have multiple clients and customers; some have distinct occupation or delivery businesses; there is no commonality in the instrumentalities, tools, and place of work; carriers may or may not take advantage of chances to generate profits; and the length of time to perform services varies.”]) Nonetheless, and although it acknowledgedthat it could reverse the trial court only for a “manifest abuse of discretion,” (Opn.at p. 6), the Court below reached the opposite result from Sotelo and Ali, concluding that those factual variations in the secondary factors did not matter for -13- purposes of the predominanceinquiry. (/d. at p. 19.) In essence, the Court stated that variations amongputative class membersas to the secondary factors are immaterial because the factors bear on the nature of the work at issue and notthe specific facts of particular service relationships. (/bid.) In so holding, the Court not only mischaracterized the secondary factors analysis but also improperly substituted its own view ofthe evidence for that ofthe trial court: despite having notedthe applicable abuse of discretion standard, the Court never explained precisely how thetrial court had abusedits discretion in determining that individual issues would predominateat trial. Whetherintentionalor not, the Court of Appeal’s substitution of its judgment regardingthe facts forcedit to decidethe class certification question without the benefit of the trial court’s unique insight and understanding of whether the case could feasibly be tried as a class action. Rather than distinguishing Sotelo and Ali, discussing their reasoning, or explaining why it analyzed the independentcontractortest differently, the Court below dismissed those cases in a footnote as involving “facts and positions unique to the parties.” (Opn.at p. 18, fn. 9.) The Sotelo Court’s understanding of the relationship betweenclass certification principles and the independentcontractor test, however, was not specific to the newspaper context or to the specific factual variations present in the Sotelo record. What mattered wasthat there wasvariation in the secondary factors, not whatthe specific variations were. And again,the variations were largely the same in Sotelo as in the present case. Although Sofe/o and this case differ in many ways,there is no way to distinguish the two cases on this critical point. The sameistrue ofAli. The conflict between Sofe/o and Ali and this case will presenttrial courts with a conundrum. Anytrial court confronted with a putative class of misclassified newspaper carriers—orany otherclass ofallegedly -14- misclassified employees—will need to choose between the approach to the secondary factors embodied in Sotelo and Ali or the novel approachset out in the opinion below, which requires them to determine, without any guidance from precedent, whether the contracted work or job “involves the kind of work that may be done by an independentcontractor, or generally is done by an employee.” Thatis not a theoretical problem. A numberof such cases are pending at present.” And becausethe discussion ofthe secondary factors by the Court belowis notlimited to class cases, the confusion that it engenders will also not be limited to such cases but will arise in all applications of the Borello test. To maintain the uniformity of decisions, this Court should resolve the conflict between Sote/o and Ali and the present case. B. Review Is Required to Correct the Court of Appeal’s Misinterpretation of the Borello Secondary Factors Reviewis also necessary to allow this Court to “settle an important question of law”by correcting the lower Court’s mischaracterization of the Borello secondary factors. (See Cal. Rules of Court, rule 8.500(b)(1); see also S. Cal. Chapter ofAssociated Builders & Contractors, Inc. v. Cal. Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3; Great W. Showsv. Cnty. ofL.A. (2002) 27 Cal.4th 853, 858-59.) In concluding that the secondary factors bear only on the “type ofwork”at issue and on the abstract question of “contro!” over the work performed, the lower Court misunderstood the purpose of the secondary factors and conflated the * (See, e.g., Becerra v. The McClatchy Co. (Fresno Cnty. Sup. Ct., pending, No. 08 CECG 04411 AMS); Sawin v. The McClatchy Co. (Sacramento Cnty. Sup. Ct., pending, No. 34-2009-00033950-CU-OE-GDS[pending]); Salgado v. The Daily Breeze, et al. (Los Angeles Cnty. Sup. Ct., pending, No. BC458074)); Espejo v. The Copley Press Inc. (San Diego Cnty. Sup. Ct., pending, No. 37-2009-00082322-CU-OE-C TL).) -15- secondary factors with the right-to-control analysis. That result warrants correction by this Court. 1. The Court below incorrectly interpreted the secondary factors to focus on the whetherthe “type of work”at issue is typically done by an independent contractor or an employee The Court below held that the Defendant’s evidencethat alleged class members did not share common secondary characteristics was simply “evidence that the type of work involved often is done by independent contractors.” (Opn. at p. 19.) In the Court’s view,“a carrier’s employee status cannot be based upon the individual choices the carrier makes” because “the focus of the secondary factors is mostly on the job itself, and whetherit involves the kind of work that may be done by an independent contractor, or generally is done by an employee.” (/bid.) That is incorrect. In fact, the secondary factors relate to the specifics of particular service relationships, not to whether the type of workat issue is generally performed by an employee. The Court below overlooked that the “type of work” performedis itselfone of the secondary factors. In Borello, this Court articulated that factor as “the kind of occupation, with reference to whether, in the locality, the work is usually done underthe direction of the principal or by a specialist without supervision.” (See Borello, supra, 48 Cal.3d at p. 3514; see also Sotelo, supra, 207 Cal.App.4th at p. 657.) It would makelittle sense to identify the “type of work” as one of many secondary factorsif the secondary-factor inquiry as a whole were directed at determining what “type of work” was performed. | Most of the remaining secondary factors concern matters other than the “type of work” being performed. Here, for example, the length of time for which a carrier has provided services varies by individual and has nothing to do with the intrinsic nature of newspaper-delivery services. -16- Likewise, whether a particular carrier used helpers or substitutes is a fact specific to that carrier. So, too, is whether a given carrier obtained supplies from AVPor provided them himself or herself. And whetherthe parties believed they were forming an employer-employeerelationship turns on the state of mind of the contracting parties, not on the nature of the work to be performed. Indeed, other than Borello’s “kind of occupation”factor, only one secondary factor—the skill needed to perform the work—pertains directly to the generic type of work performed. In other words,“different legal standards [do not] apply in the context of different occupations”but, acerather, ““[e]ach service arrangement must be evaluated on its facts, and the dispositive circumstances may vary from case to case.’” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 87, quoting Borello, 48 Cal.3d at 354 [emphasis altered].) For that reason, courts have observed that in any given case “a newspapercarrier can be an independent contractor as a matter of law; in others, an employee as a matter of law; andin still others, the status of the newspapercarrier to the newspaperis a factual issue.” (Larson v. Hometown Communications, Inc., (Neb.Ct.App 1995) 526 N.W.2d 691, 698, affd. (Neb. 1995) 540 N.W.2d 339; see also Harper ex rel. Daley v. Toler (Fla. Dist. Ct. App. 2004) 884 So.2d 1124, 1133, quoting Keith v. News & Sun Sentinel Co. (Fla. 1995) 667 So.2d 167, 170 [noting that “whether a particular newspapercarrier is an employee or an independent contractor depends on the particular relationship the carrier has with the aenewspaper”and“‘the facts peculiar to each case govern the decision.””]) Cases from California and elsewhere reflect those principles. Some find newspaperdelivery persons properly classified as independent contractors based on the specific facts (and combinationsofthe right-to-control and -17- secondary factors) presented.’ Other courts, presented with different facts and in different contexts, have concluded that newspaperdelivery persons were instead properly classified as employees.’ Andcasesinvolving other occupations confirm that workers doing relatively lower-skilled work can be independent contractors, evenwhen the work in question could be and often is performed by an employee. (See, e.g., Becker v. Industrial Accident Com. (1931) 212 Cal. 526 [general messenger]; Chin v. Namvar (2008) 166 Cal.App.4th 994 (Chin) [painter]; Torres v. Reardon (1992) 3 Cal.App.4th 831 (Torres) [gardener]; Millsap v. Fed. Express Corp. (1991) 227 Cal.App.3d 425 [parcel delivery-person]; Lara v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 393, 399-400 (Lara) [gardener].) If the Court below werecorrect that the secondary factors bear only on whether a particular type of work is “independent contractor” work or not, then varied evidence regarding secondary factors would always be irrelevant on class certification because a well-defined class of putatively misclassified workers always performs the same “type” of work. There would be no cases denying certification of classes of putatively 3 (See, e.g., Fleming v. Foothill-Montrose Ledger (1977) 71 Cal.App.3d 681, 685; Taylor v. Industrial Accident Com. (1963) 216 Cal.App.2d 466; Hartford A. & I. Co. v. Industrial Accident Com. (1932) 123 Cal.App. 151; see also Venango Newspapers v. Unemployment Comp. Bd. ofReview (Pa.Commw.Ct. 1993) 631 A.2d 1384; LaFleur v. LaFleur (lowa 1990) 452 N.W.2d 406; Brown v. NLRB (9th Cir. 1972) 462 F.2d 699; Cable v. Perkins (ill.App.Ct. 1984) 459 N.E.2d 275; Neve v. Austin Daily Herald (Minn.Ct.App. 1996) 552 N.W.2d 45; Lewiston Daily Sun v. HanoverIns. Co. (Me. 1979) 407 A.2d 288; Ross v. Post Publ’g Co. (Conn. 1943) 29 A.2d 768.) “ (See, e.g., Grant v. Woods (1977) 71 Cal.App.3d 647, 652; Cal. Emp. Com. v. L.A. Downtown Shopping News Corp. (1944) 24 Cal.2d 421.) -18- misclassified independent contractors on predominance grounds. In fact, however, there are such cases.° Finally, the holding of the Court below that “‘a carrier’s employee status cannot be based upon the individual choices the carrier makes,if other choices are available” (Opn.at p. 19) is not supportable as applied to the secondary factors. A carrier’s abstract freedom of choice (whether exercised or not) might well bear on the question of which party had the “right” to control the manner and means ofperforming the work. Many of the secondary factors, however, depend on the choices madeby both the workerand the service recipient, and they would make nosenseifthe rule were otherwise. For example, courts considering whether a given workeris “engaged in a distinct occupation or . . . business,” do not ask simply whether a given worker has the option to engage in other work (whether exercised or not) but whether he or she does engagein other work.° > (See, e.g., Sotelo, supra, 207 Cal.App.4th at pp. 657-59 [denying certification of class of putatively misclassified newspapercarriers given variability as to secondary factors]; Ali, supra, 176 Cal.App.4th at pp. 1349-52 [denying certification of class of putatively misclassified workers given variability between class membersasto right to control and secondary factors]; Walker v. Bankers Life & Cas. Co. (N.DIl. July 28, 2008, Case No. 06-C-6906) 2008 WL 2883614, *11 [same, applying California law, where evidence bearing on “right to control” and secondary factors varied, meaning that“a liability determination will require an individualized evaluation of each [worker’s] relationship with [the defendant]”]; Rumpke v. Rumpke Container Serv., Inc. (S.D.Ohio 2001) 205 F.R.D. 204, 208-09 [same, where evidence bearing on applicable 13- factor independentcontractor test varied among membersofthe putative class].) ° (Lara, supra, 182 Cal.App.4th at pp. 399-400 [noting that worker performed work in question “as part of his own occupation as a gardener, whichhe had been doing independently for approximately 25 years” and that while he “does not advertise, he has several different clients”]; Chin, supra, 166 Cal.App.4th at pp. 1000, 1008 [given that painter had “other clients,” he was “in fact engaged in an independently established painting business”; Torres, supra, 3 Cal.App.4th at p. 838 [finding that gardener -19- Likewise, with regard to the length of time for which the services are to be performed and the degree of permanenceofthe relationship, a worker could always chooseto enter into a service contract of a different length or terminate a service relationship at a particular time. These factors would be meaningless unless they considered the actual duration of the service relationship in question. In short, at least some of the secondary factors depend on the actual circumstancesof individual contractors—the “choices” that they have made abouttheir worklives. 2. The lower Court’s holding regardingclass certification warrants review The lower Court’s error regarding the secondary factors fatally underminesits conclusion that the independent contractor analysis is a “common question” in this case. There is no dispute that the secondary- factors evidence in this case varies from contractor to contractor; the Court belowacknowledged as much. As Sotelo held, because each factorin the independent contractortest is relevant to the overall classification inquiry— even if any given factoris not necessarily dispositive—it still may be litigated at trial, requiring individual proof. Thus, where thereis variation as to those factors among class members, individual issues predominate because individual testimony will be needed to determine liability in individual cases. That is the antithesis of a proper class. (Brinker, supra, 53 Cal.4th at p. 1052 [class treatment of a case is inappropriate if proofat trial would need to proceed “in an employee-by-employee fashion”].) The trial court was therefore correct to deny class certification, and it certainly was within its right and did not abuse its discretion in doing so. The Court below erredin setting aside thetrial court’s decision. Its erroris significant not only becauseofits effect on class actions and other was independent contractor where he provided tree-trimming service in the course of his own business].) - 20 - litigation but also becauseit will create significant uncertainty for businesses that previously have beenable to rely on the Borello factors in determining the status of persons providing services to them but that now must attempt to apply the novel test announced by the Court of Appeal. That uncertainty is especially harmful in light of the serious consequences that can result from misclassifying workers as independent contractors, including liability under federal and state tax laws, the Fair Labor Standards Act, and the California Labor Code, which provides large civil penalties for misclassification. (See, e.g., Cal. Lab. Code § 226.8 [providing for penalties of up to $25,000 per violation].) This Court recognized the - importanceofclarity in the test for determining independent contractor status whenit granted review sua sponte in Borello. (See Borello, supra, 48 Cal.3d at p. 360, fn. 1 (dis. opn. of Kaufman,J.).) The decision below similarly warrants review and correction by this Court. IV. CONCLUSION The petition for review should be granted. Respectfully submitted. DATE: [blo to November26, 2012 By:_\, Li] \ Sue J. Stott, State Bar No.91144 Attorneys for Petitioner ANTELOPE VALLEY NEWSPAPERS,INC. PER ol fi fl WICK _ 71240-0001/LEGAL25033459 -21- CERTIFICATE OF COMPLIANCE PURSUANT TO RULE8.204(c) OF THE CALIFORNIA RULES OF COURT Pursuant to Rule 8.204(c) of the California Rules of Court, and in reliance on the word count feature of the software used to prepare this document,I certify that the attached Petition For Review contains 6,457 words, including footnotes and exclusive of those materials not required to be counted under Rule 8.204(c)(3); is proportionally spaced; and has a typeface of 13 points. DATE: PER IE L November 26, 2012 By: SueJ. Stott, State Bar No. 91144 Attorneys for Petitioner ANTELOPE VALLEY NEWSPAPERS,INC. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinions notcertified for publication or ordered published,except as specified 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 FOUR MARIA AYALAet al., B235484 Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC403405) V. ANTELOPE VALLEY COURT OF APPEAL - SECONDDIST. NEWSPAPERS,INC., FT LIS D | 192012 Defendant and Respondent. JOSEPH Se Clerk Deputy Clerk APPEALfrom an order of the Superior Court for Los Angeles County, Carl J. West, Judge. Reversed in part and affirmedin part. Callahan & Blaine, Daniel J. Callahan, Jill A. Thomas, Michael J. Sachs, Kathleen L. Dunham andScott D. Nelson for Plaintiffs and Appellants. Perkins Coie, William C. Rava and Sue J. Scott for Defendant and Respondent. Plaintiffs Maria Ayala, Rosa Duran, and Osman Nufiez appeal from an order denying their motion forclass certification. Plaintiffs sought to certify a class of newspaper homedelivery carriers in a lawsuit against defendant Antelope Valley Newspapers,Inc. (AVP),alleging that AVP improperly classified the carriers as independentcontractors rather than employees and violated California labor laws. Thetrial court found there were numerous variations in howthecarriers performed their jobs, and therefore commonissues did not predominate. We conclude, however, that those variations do notpresent individualissues that preclude class certification. Instead, because all of the carriers perform the same job under virtually identical contracts, thosevariations simply constitute common evidence that tends to show AVP’slack ofcontrol over certain aspects of the carriers’ work. Similarly, the so-called “secondary factors”that must be considered when determining the primary issue in this case -- whether AVP improperly classified the carriers as independent contractors rather than employees -- also may be established for the most part through commonproof, since almost all of those factors relateto the type of work involved, which is commontothe class. Therefore, we holdthetrial court erred in finding that the independent contract or- employeeissue is not amenable to class treatment. Ourholding that the independent contractor-employee issue may be determined on a class widebasis through commonproofdoesnotentirely resolve the class certification question asto all of the causes of action plaintiffs allege. Thetrial court also foundthatplaintiffs’ claims of overtime and meal/rest period violations (Lab. Code, §§ 1194, 226.7, 512) were not amenableto class treatme nt because ofwide variation in the amount of time each carrier spent performing the required work, and their varied use ofhelpers or substitutes. Therefore, the trial court found that individual inquiries would have to be made to determine AVP’s liability as to each carrier (assuming,of course, the.carriers were found to be 2 employees). Weagree,andaffirm the trial court’s denialof class certification as to the first, second, and third causes of action. We reverse the order denying certification as to the remaining causes of action because the court’s denial as to those claims wasbasedsolely uponits determination that the independent contractor-employee issue is not suitable for class treatment. Unless the trial court — determines, on remand,that the remaining causes of action present predominately individual issues as to liability (as opposed to damages), the court shall certify the class for the fourth through eighth causes ofaction. BACKGROUND Plaintiffs, who are (or were) newspapercarriers for AVP,filed a lawsuit on behalf of themselves anda putative class of carriers who signed an “Independent Contractor Distribution Agreement” with AVP,alleging claimsfor (1) failure to pay overtime wages (Lab. Code, § 1194); (2) failure to provide meal periods or ~ compensation in lieu thereof (Lab. Code, §§ 226.7, 512); (3) failure to provide rest periods or compensationin lieu thereof (Lab. Code, § 226.7); (4) failure to reimburse for reasonable business expenses (Lab. Code, § 2802); (5) unlawful deductions from wages (Lab. Code, §§ 221, 223); (6) failure to provide itemized wagestatements (Lab.-Code, §§ 226, 226.3); (7) failure to keep accurate payroll records (Lab. Code, § 1174); and (8) violation of Business and Professions Code section 17200 (based uponthe alleged violations of the Labor Code). The complaint alleges that AVP publishes the Antelope Valley Press,a general circulation newspaperthatis distributed under the auspices of AVP. Most of AVP’s customers receive homedelivery of the newspaper on a daily basis. The membersofthe putative class are engaged by AVPto assemble inserts, sections, pre-prints, samples, bags, and supplements and deliver the newspapers asdirected by AVP to AVP’s customers. The complaintalleges that, even thoughclass 3 members signed agreements that categorize them as independent contractors, AVP maintainsthe right to control the performance oftheir work, and therefore their relationship with AVPis that of employeesrather than independentcontractors. Thus,the complaint alleges, AVP violated various provisions of California labor laws byfailing to pay overtime wages,failing to provide meal and/orrest breaks, failing to reimburse carriers for their reasonable business expenses (such as automobile expenses), makingillegal deductions from their wages (for customer complaintsor supplies, or by requiring carriers to pay the cost of workers’ compensation insurance), failing to provide itemized wage statements, and failing to keep accurate payroll records showingthe hours worked bythe carriers. Plaintiffs movedto certify the class. They argued that“[t]he central issue to liability is whetheror not the putative class members. . . are ‘independent contractors’ or ‘employees,’” and that this issue can be decided based upon common proof. Noting that the principaltest to determine whether a workeris an employee or an independent contractor is whetherthe principal hasthe right to control the mannerand means by which the worker accomplishes the work, - plaintiffs contended they could establish this right to control through the standardized distribution agreements AVPuses, as well as other common evidence. AVP opposed the motion to certify. Although AVP agreed that the independent contractor/employee issue was a threshold issue and that the primary factor in determining that issue is whether the principal has the right to control the - manner and meansof accomplishing the work, it argued that determination of that issue was not subject to commonproof because the manner and means by which the carriers accomplish their work varies widely. AVP also argued that, even if the independent contractor/employee issue could be determined through common proof,plaintiffs failed to address whether common issues predominate as to each 4 of the causes of action; it contended that the other elements ofthose claims require individual proof and therefore class treatment wasnot appropriate. In a lengthy anddetailedruling, the trial court denied the motion for certification, finding that “heavily individualized inquiries are required to conduct the ‘control test?” to determine whether the carriers are independentcontractors or employees, and that the overtime and meal/rest break claims require individualized inquiries due to the wide variation in hours and days workedbythecarriers. Plaintiffs timely filed a notice of appeal from the order denyingclass certification. DISCUSSION A. Standard ofReview ofa Class Certification Order Code of Civil Procedure section 382 authorizes class actions “when the question is one of a commonorgeneralinterest, of many persons, or when the parties are numerous,andit is impracticable to bring them all before the court.” (Code Civ. Proc., § 382.) “The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerousclass, a well-defined community of interest, and substantial benefits from certification that render proceedingas a class superiorto the alternatives. [Citations.] ‘In turn, the “community of interest requirement embodiesthree factors: (1) predominant common questionsoflaw or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.”’ [Citations.]” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) The only elementof class certification at issue in this appealis that of predominance. “The ‘ultimate question’ the element of predominancepresentsis whether ‘the issues which may bejointly tried, when compared with those requiring separate adjudication, are so numerousor substantial that the 5 maintenance ofa class action would be advantageousto the judicial process andto the litigants.’ [Citations.] The answer hinges on ‘whether the theory of recovery advanced bythe proponentsofcertification is, as an analytical matter, likely to prove amenableto class treatment.’ ,[Citation.]” (Brinker, supra, 53 Cal.4th at p. 1021.) “To assess predominance,a court ‘must examinethe issues framed by the pleadingsandthe law applicable to the causes of action alleged.’ [Citation.] It must determine whetherthe elements necessary to establishliability are susceptible of commonproofor, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence.” (id. at p. 1024.) Whetherthe claimsplaintiffs seek to assert as a class action have merit is not ordinarily a concern attheclasscertification stage. (Brinker, supra, 53 Cal.4th at p. 1023 [‘‘Thecertification question is “essentially a procedural one that does not ask whether an actionis legally or factually meritorious”’”}.) The class action mechanismis simply a tool to resolve the asserted claimsforall parties, including absentclass members, in a single action. Thus, a class maybe certified evenif it is likely that the defendantwill prevail on the merits. Certification in such a case would allow the defendant to obtain a judgmentin its favor that would be binding on all membersofthe class (except those who elect to opt out of the class in a timely fashion). (See id. at p. 1034 [“Itis far better froma fairness perspective to determineclass certification independent of threshold questions disposing of the merits, and thus permit defendants whoprevail on those merits, equally with those wholose on the merits, to obtain the preclusive benefits of such victories against an entire class and not just a namedplaintiff”].) “On review ofa class certification order, an appellate court’s inquiry is narrowly circumscribed. ‘The decision to certify a class rests squarely within the discretion ofthe trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse ofdiscretion: *... A certification order 6 generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on impropercriteria, or (3) it rests on erroneouslegal assumptions.” (Brinker, supra, 53 Cal.4th at p. 1022.) B. Law Governing the Independent Contractor/Employee Distinction All of plaintiffs’ claims are based upon their allegation that AVP misclassified the carriers as independent contractors whentheyare, in fact, employees. In S.G. Borello & Sons, Inc. v. Department ofIndustrial Relations (1989) 48 Cal.3d 341 (Borello), the Supreme Court discussed the test courts have used to determine independent contractor or employee status. The Court explained: “Following commonlaw tradition, California decisions. . . uniformly declare that ‘(t]he principal test of an employmentrelationship is whetherthe person to whom serviceis rendered has the right to control the manner and means of accomplishing the result desired... .’ [Citations.] [§] However, the courts have long recognizedthat the ‘control’ test, applied rigidly and in isolation,is often oflittle use in evaluating the infinite variety of service arrangements. While concedingthat the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” (/d. at p. 350.) Those secondary indicia includetheright to discharge at will, without cause, as well as other factors “derived principally from the Restatement Second of Agency.” (id. at pp. 350- 351.) Those factors include: “(a) whether the one performing servicesis engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether,in the locality, the work is usually done under the direction ofthe principal or by a specialist without supervision;(c) the skill required in the particular occupation; (d) whetherthe principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) 7 the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the workis a part of the regular businessofthe principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.” (Id. at p. 351.) In addition to the Restatementfactors, the Supreme Court noted with approval a six-factor test developed by other jurisdictions. In thattest, “[bJesides the ‘right to control the work,’ the factors include (1) the alleged employee’s opportunity for profit or loss depending on his managerial skill; (2) the alleged | employee’s investment in equipmentor materials required for his task, or his employmentofhelpers; (3) whether the service rendered requires a specialskill; (4) the degree of permanenceofthe working relationship; and (5) whether the service renderedis an integralpart of the alleged employer’s business.” (Borello, supra, 48 Cal.3d at pp. 354-355.) The Court cautioned that the individual factors — from the Restatement as well as the six-factortest — “‘cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’” (Id. at p. 351.) C. Evidence and ArgumentRelated to Independent Contractor/Employee Issue In moving forclass certification, plaintiffs argued that commonproofof AVP’sright to control the carriers’ work can be found in the standard form agreements AVPrequiresall carriers to sign, as well as other AVP documents and testimony by AVP managersandplaintiffs’ declarations. In opposition, AVP arguedthat, although it does specify in detail the results it demandsofthe carriers — the timely deliveryof its newspapers in a dry, readable condition -- it does not have a right to and does not control the means and manner of accomplishing that delivery. It contended that many ofthe facts that plaintiffs pointed to as evidence of control wereirrelevant to show control over the means and manner by whichthe 8 carriers accomplish the desired result, but it argued that, in any event, there were so manyvariations in the way in which the carriers did their work that the issue of control is not amenable to class treatment.’ 1. Form Agreements as Evidence ofRight to Control In relying upon the form agreements -- the “Independent Contractor Distribution Agreement,” which AVP stipulated were the standard contractsit used during the class period -- as common evidence.of AVP’s purported rightto control, plaintiffs argued that only a “handful of terms” are not pre-printed, and even with respect to those terms,there is no “real negotiation.” The agreementsset forth the requirements for whatis to be delivered. They require the carriers to deliver the newspapers (and other products that AVP | provides),° in a safe and dry condition. They prohibit the carriers from delivering any part of the newspaper(suchas advertising inserts or coupons) separately, or from inserting into, attaching to, or stamping upon the newspaperany additional matter. They also prohibit the carriers from inserting the newspapers into any imprinted wrapping,covering, or container that has not been approved by AVP, and require carriers to use certain typesor colors of bags for certain products. ' Wenote that AVP does not concede that any ofthe carriers are employees, and instead maintains they are all independent contractors. 2 Plaintiffs did acknowledge, however, that three or four carriers did negotiate at least one of the terms, and obtained different piece rates than other carriers obtained. 3 In addition to the daily newspaper AVP publishes, the agreements require carriers to deliver a weekly publication, the Antelope Valley Express. AVP also requires carriers to include certain items, such as advertising inserts or coupons, with the newspapers they deliver. The agreements also set forth requirementsrelated to when the newspapers are to be delivered. Some of them require the carrier to pick up their newspapers by a certain deadline each day, and all of them require the carrier to complete delivery by a certain time. | Underthe agreements,the carrier is required to furnish the carrier’s own vehicle and provide AVP with copies ofthe carrier’s driver’s license, social security number, and proofof automobile and workers’ compensation insurance. The agreements also state that the carrier has noright, title, interest, or property right to subscriber information, may not discloseto third parties the subscriberlist or route records, and mustreturn all records to AVP upon termination ofthe contract. In addition, the carrier must give AVP an accurate updated subscriber delivery list when requested by AVP, and must cooperate with auditors for the Verified Audit of Circulations or the Audit Bureau of Circulation when requested. According to plaintiffs, all of these terms evidence AVP’s right to control. In its opposition to plaintiffs’ motion, AVP did not dispute the existence of the terms(althoughit did dispute plaintiffs’ assertion that there wasnoreal negotiation), but instead arguedthat the termsare irrelevant to determining whether AVPhastheright to control the manner and means of accomplishingthe desired result. It contended that the terms setting forth the requirements of whatis to be delivered and whenit is to be delivered merely define the results for which AVPis contracting, and the remaining terms have no connection to how the delivery is to be accomplished. Moreover, AVP argued that, since the form agreements expressly disclaim any right to control the means and mannerin which the carriers accomplish theresult (i-e., timely delivery of newspapers in a dry, readable condition), the factfinder will have to look beyond the agreements,at the actual conduct of delivery operations, to determine AVP’s control. To that end, 10 AVP submitted the declarations of 15 carriers* and its home delivery manager,as well as deposition testimony from plaintiffs and AVP’s circulation operations manager, to show the variations amongthe carriers in the manner in which they do their work, and argued that becauseofthese variations there is no commonality on the right to controlissue. 2. Other Documents Related to Right to Control In addition to relying upon the form agreements to establish AVP’s alleged control, plaintiffs pointed to documents knownas “bundle tops”or “carrier mail,” whichtypically are prepared by AVP and providedto all carriers each day.” The bundle tops inform the carrier about customers’ requests regarding the placement of their papers and whetherto start or stop delivery to certain customers, and provideinstructions about inserts to the newspaperand/oruse of colored bags on that day. Similarly, plaintiffs contended that route lists that AVP providesto all carriers show the control AVP exercises, becausethe lists contain instructions about customer preferences or requests regarding how the newspapersare delivered.® Plaintiffs also asserted that “suggestion sheets” and “success sheets” that AVP provides to some(althoughnotall) carriers constitute evidence of AVP’s 4 Although AVPcollected declarations from more than 50 of its current and former carriers, the trial court limited its submission to 15 carrier declarations. ° Plaintiffs submitted several examples of bundle tops, which AVPstipulated were _representative of the bundle tops it provided to carriers on a daily basis. 6 Plaintiffs submitted examples ofroute lists, which AVP stipulated were representative of route lists it provided to all carriers. 1] right to control becausethey give step-by-step instructions about how to complete their jobs.’ | Although AVP conceded that the bundle tops androutelists it providesto all the carriers include delivery instructions that include directions on howto drive to . subscribers’ addresses, it submitted testimony from carriers (includingplaintiffs) that they are not required to, and many donot, follow those directions. Acknowledging that one of the namedplaintiffs testified that she was required to comply with special customer requests, AVP noted that she was the only carrier whosotestified, and it submitted testimony from other carriers that there was no such requirement. 3. Evidence ofConduct Related to Right to Control In addition to documentary evidence,plaintiffs pointed to evidence of AVP’s conduct to show AVP’s control overthe carriers. First, they argued that AVP controls the carriers’ performancethroughits use of customer complaints. Noting that the form agreements allow AVP to imposefinancial penalties for customer complaints (such as wet, damaged,or missing papers), plaintiffs submitted their declarations attesting to the fact that AVPmade deductions from their pay for customer complaints. They also submitted invoices (which AVPstipulated were representative of invoices they providedto all carriers) that reflect those deductions. In addition, they submitted evidence showing that AVP keepstrack of customer complaints against each 7 Plaintiffs submitted examples of suggestion sheets and success sheets that AVP stipulated were representative of such sheets that it provided to some, although-notall, ‘carriers. We note that all three sheets in the record are virtually identical, all three state at the top “This is your business,” and twoout ofthe three also state “The following are merely suggestions.” 12 carrier, informsthe carriers of complaints from their customers, and that AVP’s homedelivery manager would talk to a carrier if he believed the number of | complaintsthe carrier received wastoo high. In its opposition, AVP noted that the way customer complaintsare treated can weigh in favorofor against a finding of independent contractorstatus, and argued that commonality is lacking because, although the form agreements provide for a charge against the carrier for customer complaints (which would tend to indicate an independent contractorrelationship), the practices have varied among carriers and overtime. It presented evidence that somecarriers have not always been charged for customer complaints while others have always been charged,that somecarriers have negotiated with subscribers regarding their complaints (which would indicate an independentcontractorrelationship), and that underoneofthe two form agreementscarriers have the option to re-deliver newspapersto resolve customer complaints (which also would indicate an independent contractor relationship). Second,plaintiffs argued that AVP’s monitoring of carriers’ work evidenced its control. They submitted evidence that AVP conducts routine field inspections to verify deliveries of complementary newspapers and the weekly newspaper(the Antelope Valley Express), and occasionally conducts field inspectionsto see if advertisements were properly placed on newspapers that had been delivered. AVP did not dispute that it conducts field inspections. Instead, it contended that monitoring to ensurethe desired result is being accomplished doesnot evidence contro] over the manner and means of delivery, but that if it does, it is not subject to commonproofbecause the frequency and circumstancesofinspections vary from carrier to carrier. Third,plaintiffs submitted evidence that AVP providestraining to someof the carriers, which it contends showsits control. AVP arguedthatthis issue was 13 not subject to commonproof, based upon evidenceit provided showing that some carriers had a drive-along with AVP and somedid not, and somecarriers received training and/or documents on how to make deliveries while others did not. AVP | provided evidence, however, that carriers were not required to follow any instructions that were given. Moreover, although two of the namedplaintiffs testified that they were instructed on how to fold the newspapers and were required to fold them as instructed, AVP’s home delivery managertestified that AVP does not require carriers to fold or throw the newspapersin any particular way. Finally, plaintiffs argued that AVP’s control is demonstrated by evidence that it requires carriers to pick up their newspapersfor delivery by a certain deadline, and controls the order in which carriers pick up their newspapers by giving carriers numbersin the orderoftheir arrival at the loading dock. AVP disputed plaintiffs’ assertion that its specification is evidenceof a right to control, but submitted evidence to show that, even if it could show control, not every carrier signed contracts that included a deadline and somecarrierstestified that they were free to decide whento pick up their newspapers and/or werenotfined or disciplined if they picked them up after the stated deadline. In addition, some of the carriers testified that they could choose whetherto arrive early to pick up their newspapers and receive a pick-up number, and that even if they did choose to do so, they were free to leave the area after receiving their pick-up numbersand could do whatever they wish while waiting for their numberto becalled. In addition to addressing the evidencethat plaintiffs asserted demonstrated AVP’s control, AVP presented additional evidence that it contended wasrelevant to the control issue, but required individual inquiries. For example, AVP submitted evidence showingthatcarriers are allowed to use helpers or substitutes, that some of them dousehelpersorsubstitutes, and that those carriers decide, in their sole discretion, whom they use, when and howthey use them, and what they 14 pay them. It also contendedthat to the extent frequency of contact between carriers and AVP employees may evidencecontrol, individual inquiries would be required because the evidence it presented showed that the frequency varied among carriers. It submitted evidence, however, that carriers were not required to check in with AVPorreport ontheir delivery status or to attend meetings. 4, Evidence Related to Secondary Factors Addressing the secondary factors used to determine independent contractor or employeestatus, plaintiffs contended that many of those factors are subjectto commonproof. They submitted evidencethat carriers set supplies such as rubber bands and plastic bags from AVP,as well as the newspapers and advertisements the carriers deliver. They also submitted evidencethat carriers use AVP’s facilities to pick up materials needed for their work, that AVP providescarts that carriers can use to carry the newspapersto their vehicles, and that AVP will, if requested, provide mapsofthe carriers’ routes. They argued that this evidence shows that AVP supplies the instrumentalities, tools, and the place ofwork for the person doing the work. Plaintiffs provided evidence that AVP controls the overall newspaper business operations, that delivery ofthe newspapersis an integral part ofits business, and thatit holds itself out to the public as the entity responsible for delivery of the newspapers. They also pointed to provisions of the common agreements to show that AVPhasthe right to terminatecarriers at will (on 30 days notice), and thatcarriers are engaged in prolonged service to AVP. Finally, plaintiffs argued that the carriers’ work did not require any specialized skill, relying upona finding in a case, Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839 (Poizner), in which Division Three of this District affirmed a 15 decision of an administrative law judge that carriers are employees for purposes of worker’s compensation insurance. | In its opposition, AVP argued there was no commonality with regard to severalof the factors, based upon evidenceit submitted showing that: (1) some carriers delivered other publications (such as the Los Angeles Daily Newsorthe Los Angeles Times) at the same time they delivered for AVP; (2) somecarriers have set up formal businessentities to conduct their delivery business, or consider their delivery work to be an independentbusiness; (3) somecarriers providetheir _ contact information to subscribers and/or deal directly with subscribers regarding complaints or special requests; (4) somecarriers have other jobs in addition to their | delivery work; (5) somecarriers choose to use AVP’s facilities to assemble and fold their newspapers while others do not; (6) somecarriers purchase supplies from ‘AVPbutothers choosenotto; (7) somecarriers take advantage of opportunities to increase their compensation by generating new subscribers, taking on additional routes, using substitutes or helpersefficiently, or avoiding customer complaint charges by re-delivering; (8) some carriers deliveredforaslittle as one day while others delivered for many years; and (9) many contractors, unlike the named plaintiffs, understood they were independentcontractors and intended to be independent contractors. 5. Evidence Related to Other Elements ofPlaintiffs’ Claims Plaintiffs in their moving papers did not address commonality with respect to any issue other than the independent contractor/employee issue, except to argue that once employeestatusis determined, individual damages may be determined through “efficient and easily managed procedures.” In its opposition, AVP notedthat plaintiffs failed to address other elements of their causes of action, and argued that commonissues do not predominateas to 16 some of those elements. It contended thatplaintiffs’ overtime and meal/rest period claimsare notsuitable for class treatment, based uponevidenceit presented showing that the numberofhours and days each carrier worked varied widely. Thus, it argued that individual inquiry would be required to determine if each carrier workedsufficient hours to be entitled to mealor rest breaks or overtime pay. Becausethis issue goes to AVP’s liability in the first instance (i.e., whether there were damagesatall) rather than the amount of damages, AVP contended class certification was not appropriate for those causesof action. In addition, AVP contendedthatplaintiffs’ reimbursement claim wasnotsuitable for class treatment because reimbursementis required (assuming employeestatus) only for expenses that are necessarily incurred, and individual inquiries must be made to determine : 8 whether each expenditure was “necessary.” D. Analysis ofthe Independent Contractor/Employee Issue In denyingclass certification, the trial court agreed with AVPthat no commonality exists regarding AVP’s right to contro! because individualized questions predominate as to who performsthe services, when and where they perform the services, and how they perform the services. Many ofthe court’s observations (and AVP’s arguments), however, actually point to conflicts in the evidence regarding AVP’sright to control rather than individualized questions. For example, the court noted that AVP’s home delivery managerdeclared that AVPdoesnot havea policy or practice to instruct or direct carriers on how to fold 8 At the hearing on the certification motion, counselfor plaintiffs argued that at the very least class members would be entitled to expensesrelated to the use of their vehicles, which counsel represented constituted 80 percent of the damagesrelated to the reimbursementclaim, and which could be computed based upon mapsofthe routes and rates set under the Internal Revenue Service mileage formula. 17 and deliver their papers, and somecarrierstestified that they were never so instructed, but two ofthe plaintiffs testified that AVP had ruleson folding the papers and howto deliver them. Similarly, the court noted that the home delivery manager and somecarrierstestified that AVP does not require carriers to bag or rubber band the newspapers, but oneofthe plaintiffs testified that carriers were required to bag them. Simply put, much ofAVP’s evidence, upon which the trial court relied, merely contradicts plaintiffs’ allegations that AVP had policies or requirements about how carriers must do their jobs. The parties do not argue that somecarriers operating under the form agreements are employees whileothers are not. Both sides argue that AVP haspolicies that apply to all carriers. The difference between the parties is the contentofthose policies. Plaintiffs argue that the policies are ones that control the way in which the carriers accomplishtheir work; AVP argues the policies impose certain requirements about the result of the workbut allow the carriers to determine manner and meansused to accomplish that result. While there maybeconflicts in the evidence regarding whetherthe policies plaintiffs assert exist, the issue itself is commonto the class. Similarly, whether the policies that exist are ones that merely controlthe result, rather than control the manner and means used to accomplish that result, is an issue that is commonto the class.” ° Both sides cite to published cases involving newspapercarriers or persons engaged in similar work in which classes were or were not certified. (See, e.g., Soletov. Medianews Group, Inc. (2012) 207 Cal.App.4th 639; Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286; Aliv. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333; Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1; Dalton v. Lee Publications, Inc. (S.D.Cal. 2010) 270 F.R.D. 555.) Those cases, each of which involve. facts and positions uniqueto the parties, are not of much assistancein this case. 18 Just as AVP’s evidencethat the way that the carriers accomplished their work varied widely is evidenceofits lack of control over the carriers asa class, muchofits evidence regarding the secondary factors -- e.g., that some carriers choose to operate as independentbusinesses, delivering papers for multiple publishers, that other carriers work at other jobs in addition to delivering for AVP, that some carriers choose to deal directly with subscribers, that somecarriers choose to take advantage of opportunities to increase their compensation,and that somecarriers choose not to use AVP’s facilities to assemble their newspapers or choosenot to purchase supplies from AVP-- is evidence that the type of work involved often is done by independent contractors. To be sure, somecarriers choose notto deliver for multiple publishers, or work at other jobs, or dealdirectly with subscribers, or take advantage of opportunities to increase their compensation, or they choose to assemble the newspapers at AVP’s facilities or to purchase supplies from AVP. Buta carrier’s employee status cannot be based upon the individual choicesthe carrier makes, if other choices are available. Rather, the focus of the secondary factors is mostly on thejob itself, and whetherit involves the kind of work that may be doneby an independent contractor,or generally is done by an employee. All of the factors may be determined based upon common proof. Before we leave this issue, we need to address the Poizner case, upon which plaintiffs heavily rely. In their reply brief on appeal, plaintiffs criticize the trial court for failing to addressthis case, arguing that all of the facts that led the court in Poizner to concludethat the carriers were employees are present in this case. Poizner, however, was not a class action. It was a review ofa decision by the Insurance Commissioner, adopting the proposed decision of an administrative law judge, who concluded that AVP’s carriers were employees for purposes of worker’s compensation insurance. (Poizner, supra, 162 Cal.App.4th at p. 842.) 19 While it might be relevant to the merits ofplaintiffs’ case,’ the decision haslittle relevance to whether, on the record before thetrial court, plaintiffs’ causes of action were amenable to class treatment. E. Plaintiffs’ Causes ofAction Asnoted,plaintiffs did not in their moving papers address commonality as to any issues related to their causes of action other than the independent contractor/employee issue applicable to all of their claims. AVP, on the other hand, submitted evidence showingthat the numberofhours and dayseach carrier worked varied significantly, with someofthe carriers working fewer than four hours a day and/or seven days a week. Thetrial court found, based uponthis evidence,that individual assessments would have to be madeasto eachcarrier to determine whether, assuming they are found to be employees, they were entitled to mealor rest breaks or overtime pay. Therefore, the court foundthat those claims are not amenable to class treatment. We agree. As the Supreme Court has instructed, in assessing whether commonor individual issues predominate, the trial court “must determine whether the elements necessary to establish liability are susceptible of commonproofor,if not, whether there are ways to manageeffectively proof of any elements that may '0 Becausethe case involved an administrative mandamusproceeding, review by the trial and appellate courts of the Commissioner’s decision was under the substantial evidence test. (Poizner, supra, 162 Cal.App.4th at pp. 849-850.) Under that test, “courts do not reweigh the evidence. They determine whetherthere is any evidence (or any reasonable inferences which can be deduced from the evidence), whether contradicted or uncontradicted, which, when viewedin the light most favorable to an administrative order or decision or a court’s judgment, will support the administrative or judicial findings of fact.” Ud. at p. 849, fn. 11.) In contrast, in this case,the trial court is not presented with an administrative decision thatit must affirm if supported by substantial evidence. It must decidethe issues in the first instance, based upon the record beforeit. 20 require individualized evidence.” (Brinker, supra, 53 Cal.4th at p. 1024.) To establish liability for failure to provide mealorrest breaks or overtime pay, plaintiffs must establish that they worked sufficient hours or daysto be entitled to such breaksor pay. (See, e.g., Cal. Code Regs., tit. 8, §§ 11010(11)(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”], 11010(12)[“a rest period need not be authorized for employees whosetotal daily work timeis less than three and one-half (3 1/2) hours”]; 11010(3)(A)(1) [overtime pay required for “Te]mployment beyondeight (8) hours in any workday or morethan six (6) days in any workweek”’].) In light of AVP’s evidence,it is clear that plaintiffs cannot establish that element of its meal/rest period and overtime claims through common proof.'’ Nordid plaintiffs show how proofofthat elementcould be effectively managed to make class treatment superior to individual actions. Therefore, we concludethetrial court did not abuse its discretion by denyingplaintiffs’ motion to certify with respect to those claims. With respect to the remaining claims,the trial court denied certification based solely upon its determination that the independent contractor/employeeissue was not amendableto class treatment. In light of our conclusionthatthetrial court erred in that determination, we must reverse the court’s order as to those claims. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [order denying class certification must be reversed if based upon impropercriteria or incorrect legal assumptionseven if there may be substantial evidence to support the court’s " This is not, as plaintiffs argue, a question of individual determinations of damages. While plaintiffs are correct that the need for individual determinations of damages does not precludeclass certification (see, e.g., Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 332-333), the issue here is the need for individual determination of each carrier’s entitlement to damages, whichis a proper ground for denying class certification (see, e.g., Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 756). 2) order]; Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 829 [“In other words, we review only the reasons given bythetrial court for denial of class certification, and ignore any other grounds that might support denial”].) DISPOSITION The order denyingclass certification is affirmedasto thefirst, second, and third causes of action, and reversed as to the remaining claims. On remand, the trial court shall certify the class as to the fourth through eighth causes of action unless it determines that individual issues predominate as to someorall of them, or that class treatmentis not appropriate for other reasons. The parties shall bear their own costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS WILLHITE, Acting P. J. We concur: MANELLA,J. SUZUKAWA,J. 22 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR eeei OCT 17 2012 HALEANEsemenlel MARIA AYALAet al., B235484 §._ VEVERKA ~ Deputy Clerk Plaintiffs and Appellants, (Los Angeles County . Super. Ct. No. BC403405) V. (Carl J. West, Judge) ANTELOPE VALLEY ORDER CERTIFYING NEWSPAPERS,INC., OPINION FOR PUBLICATION Defendant and Respondent. THE COURT:* The opinion in the above-entitled matter filed on September 19, 2012, was not certified for publication in the Official Reports. Good cause appearing,it is ordered that the opinion in the aboveentitled matter be published in the official _ reports. *WILLHITE,Aéting PJ. MANELLA,J. SUZ(IKAWA J. PROOF OF SERVICE I am employedin the County of San Francisco, State of California. I am overthe age of 18 and not a party to this action. Mybusiness address is 4 Embarcadero Center, Suite 2400, San Francisco, California 94111- 4131. On November26, 2012, I caused to be served the following document: PETITION FOR REVIEW on the interested parties in this action by placing true copies of the document in sealed envelopesas set forth below, addressed as follows: SEE ATTACHED SERVICELIST XXX VIA FEDERAL EXPRESS:I placed the documentlisted above in a sealed Federal Express envelope and affixed a pre-paidair bill, and caused the envelopeto be delivered to a FEDERAL EXPRESS agent for delivery; OR XXX VIA FIRST CLASS MAIL: I caused each envelope with postage fully prepaidto be placed for collection and mailing following the ordinary business practices ofPerkins Coie LLP. I declare underpenalty ofperjury underthe lawsofthe State of California that the aboveis true and correct andthat this declaration was executed at San Francisco, California, on November 26, 2012. la, 0 James Otake SERVICE LIST Clerk of the Court California Court of Appeal Second Appellate District, Fourth Division. Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 BY U.S. MAIL Clerk of the Court California Superior Court County of Los Angeles 111 North Hill St. Los Angeles, CA 90012-3014 BY U.S. MAIL Callahan & Blaine ATTORNEYS FOR 3 Hutton Ctr. Dr., Ninth Flr. PLAINTIFFS Santa Ana, CA 92707 BY FEDERAL EXPRESS Attorney General of California BY U.S. MAIL Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 Los Angeles County District BY U.S. MAIL Attorney’s Office 210 West Temple Street, Suite 18000 Los Angeles, CA 90012-3210