Hildebrandt v. Staples the Office Superstore, LLC ( 2020 )

Filed 12/4/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
VON HILDEBRANDT, B294642
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC666236
v.
STAPLES THE OFFICE
SUPERSTORE, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Yvette M. Palazuelos, Judge. Reversed
in part, affirmed in part.
Schneider Wallace Cottrell Konecky & Wotkyns, Todd M.
Schneider, Carolyn H. Cottrell and David C. Leimbach; Boucher,
Raymond P. Boucher, Maria L. Weitz, Neil M. Larsen and
Alexander Gamez for Plaintiff and Appellant.
Morrison & Foerster, Miriam A. Vogel, Tritia M. Murata,
David P. Zins and Karen J. Kubin for Defendant and Respondent.
_________________________
Plaintiff Von Hildebrandt appeals a summary judgment
entered in favor of defendant Staples the Office Superstore, LLC
(Staples). The trial court determined all of Hildebrandt’s claims
were barred by the applicable statutes of limitations and the
pendency of related class actions did not toll the limitations
periods. We conclude the trial court erred in applying the class
action tolling rules articulated in Jolly v. Eli Lilly & Co. (1988)
44 Cal.3d 1103 (Jolly).
Because Hildebrandt concedes his claim for failure to
furnish accurate itemized wage statements (see Lab. Code, § 226)
is time barred, even if tolling applies, we will affirm the summary
adjudication of that claim.1 In all other respects the summary
judgment is reversed.
FACTS AND PROCEDURAL BACKGROUND
“Because this case comes before us after the trial court
granted a motion for summary judgment, we take the facts
from the record that was before the trial court when it ruled
on that motion. [Citation.] ‘ “We review the trial court’s decision
de novo, considering all the evidence set forth in the moving
and opposing papers except that to which objections were made
and sustained.” ’ [Citation.] We liberally construe the evidence
in support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
1 Staples separately moved for summary adjudication of
each claim.
2
1. The Parties
Staples is a global provider of office products and services.
Its Superstores are big-box retail stores catering to individual
customers and business clients. By mid-2018, Staples operated
more than 160 Superstores across California. The general
manager is the highest-level manager in a Superstore and
the only manager that Staples classifies as exempt from overtime
pay and meal and rest break requirements. General managers
are responsible for managing every aspect of a store’s operation.
Hildebrandt worked as a salaried general manager
for Staples from April 24, 2000 to June 20, 2013. During his
employment, Hildebrandt worked at several Staples locations
in California.
2. The Hatgis and Wesson Putative Class Actions
On March 11, 2014, Dianne Hatgis, a former Staples Copy
and Print Shop general manger, filed a putative class action
on behalf of all people employed as general managers at Staples
“retail locations” in California. Hatgis asserted claims on behalf
of herself and the putative class members for (1) failure to pay
overtime compensation (Lab. Code, § 510); (2) failure to authorize
and permit rest periods (id., § 226.7); (3) failure to provide
meal periods (id., §§ 226.7 & 512); (4) failure to furnish accurate
itemized wage statements (id., § 226); (5) failure to timely pay
wages upon termination or resignation (id., §§ 201–203); and
(6) violation of the unfair competition law (UCL) (Bus. & Prof.
Code, § 17200). Hatgis premised her claims on the allegation
that Staples misclassified its general managers as exempt
employees.
On July 6, 2015, the trial court in the Hatgis action granted
Staples’s motion to limit the putative class to Staples Copy and
3
Print Shop general managers only. On October 23, 2015, Hatgis
voluntarily dismissed her class claims without prejudice.
On September 4, 2015, Fred Wesson, a Staples general
manager, filed a putative class action against Staples on behalf
of all current and former general managers at Staples Superstore
retail locations in California who were employed on or after
May 10, 2010. Like Hatgis, Wesson asserted causes of action for
(1) failure to pay overtime compensation; (2) failure to authorize
and permit rest periods; (3) failure to provide meal periods;
(4) failure to furnish accurate itemized wage statements; and
(5) violation of the UCL. He alleged Staples misclassified its
Superstore general managers as exempt employees to avoid
paying overtime compensation and to avoid providing meal
and rest breaks.
On April 17, 2017, the trial court denied Wesson’s motion
for class certification, concluding Wesson failed to show that
the class claims were susceptible to common proof and that
proceeding as a class action would be superior to other methods
of adjudication.2 The court determined the “great variation
in how Staples store general managers perform their jobs and
the extent to which they perform nonexempt tasks” would require
“highly individualized determinations” regarding each general
manager’s exempt status.
2 Hildebrandt was one of several general managers who
submitted declarations in support of Wesson’s class certification
motion. In his declaration, Hildebrandt detailed his job duties
and asserted he spent more than 70 percent of his workday
performing “the same tasks as hourly employees.”
4
3. Hildebrandt’s Lawsuit
On June 22, 2017, Hildebrandt filed this action against
Staples, asserting the same causes of action that Hatgis and
Wesson had pled on behalf of their respective putative classes.
Specifically, Hildebrandt’s complaint asserts claims for (1) failure
to pay overtime compensation; (2) failure to authorize and permit
rest periods; (3) failure to provide meal periods; (4) failure to
furnish accurate itemized wage statements; (5) failure to pay
all wages upon termination; and (6) violation of the UCL.
Like the Hatgis and Wesson complaints, Hildebrandt alleges
Staples misclassified him and other general managers as exempt
employees to avoid paying overtime compensation and providing
meal and rest breaks. The complaint asserts the applicable
statutes of limitations were tolled during the pendency of the
Hatgis and Wesson class certification proceedings.
4. Staples’s Motion for Summary Judgment
Staples moved for summary judgment, arguing
Hildebrandt’s claims were barred by the applicable statutes
of limitations. Staples’s supporting evidence established that
Hildebrandt’s employment ended on June 20, 2013 and that
he did not file his lawsuit until June 22, 2017—outside the
longest limitations period of four years.
Regarding tolling, Staples argued the Hatgis action could
not have tolled the statutes of limitations on Hildebrandt’s claims
because Hatgis was a Staples Copy and Print Shop general
manger—not a Superstore general manager like Hildebrandt.
As for the Wesson action, Staples argued the denial of class
certification for lack of commonality in Wesson raised a
“presumption” against tolling. Staples maintained Hildebrandt
could not overcome the presumption because, when the Wesson
5
action was filed, Staples had “no way of predicting” which
Superstore general managers “would believe themselves to have
been deprived of overtime pay and decide to sue.” Staples also
argued the denial of class certification in Wesson could not have
been “ ‘unforeseeable’ ” to Hildebrandt, since misclassification
claims frequently depend on how individual employees perform
their jobs.
In his opposition, Hildebrandt acknowledged his claims
would be time barred without tolling. However, he argued
application of the class action tolling doctrine was necessary
to protect the efficiency and economy of the class action device;
otherwise putative class members would be induced to file
individual actions to avoid the statute of limitations bar, even
while class certification proceedings were still pending. And,
because his claims were “nearly identical” to those asserted
on behalf of the classes in Hatgis and Wesson, Hildebrandt
argued those putative class actions put Staples on notice
of the substantive claims and generic identities of potential
plaintiffs like him during the applicable limitations periods.
5. The Order Granting Summary Judgment
The trial court granted Staples’s motion for summary
judgment, concluding Hildebrandt’s claims were barred by
the applicable statutes of limitations and class action tolling
did not apply. Relying on Batze v. Safeway, Inc. (2017) 10
Cal.App.5th 440 (Batze), the court determined the denial of
class certification in Wesson due to lack of commonality gave
rise to a “presumption” against tolling. And the court concluded
Hildebrandt could not overcome that presumption, as a matter
of law, because the evidence showed tolling would be “prejudicial”
6
to Staples and the denial of class certification was not
“unforeseeable.”
Regarding prejudice to Staples, the trial court reasoned
the “discrepancies between the claims of the members of the
putative class were ‘too great for the [Wesson or Hatgis] action
to have put [Staples] on notice that it needed to preserve evidence
with respect to every one of its [Superstore general managers].’ ”
Staples, the court determined, had “no way of predicting which
of its Superstore [general managers], including potentially
Hildebrandt, managing dissimilar stores at over hundreds of
locations statewide[,] would believe they too were misclassified.”
And the court found it would have been “ ‘unrealistic to expect
that the filing of the [Wesson or Hatgis] action[ ] would have
prompted [Staples] to maintain all employment records relating
to every [Superstore general manager] or to gather evidence
and witness statements pertaining to every [Superstore general
manager].’ ”
The trial court also found “Hildebrandt fail[ed] to show
denial of class certification was unforeseeable.” In support of
the finding, the court noted “Hildebrandt was in communication
with counsel in Wesson, who is now Hildebrandt’s counsel, and
in Wesson class certification was vigorously contested which
reflects denial of class certification was not unforeseeable.”
The trial court entered judgment for Staples. Hildebrandt
filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
On appeal from a summary adjudication, “we review
the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections
7
have been made and sustained.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) We make “an independent
assessment of the correctness of the trial court’s ruling, applying
the same legal standard as the trial court in determining whether
there are any genuine issues of material fact or whether the
moving party is entitled to judgment as a matter of law.”
(Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th
218, 222.)
A defendant is entitled to summary adjudication upon
a showing that a plaintiff’s cause of action has no merit. (Code
Civ. Proc., § 437c, subds. (a) & (f)(1).) The defendant meets
this burden with respect to each cause of action by establishing
undisputed facts that negate one or more elements of the claim or
state a complete defense to the cause of action. (Id., subd. (p)(2);
Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.)
Once the defendant has made such a showing, the burden shifts
to the plaintiff to show that a triable issue of material fact exists
as to the cause of action or defense. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853.)
2. The American Pipe Tolling Rule as Adopted in Jolly
This appeal presents one issue: Was Hildebrandt entitled,
due to the pendency of the Wesson and Hatgis class certification
proceedings, to claim the benefit of the class action tolling rule
established by the United States Supreme Court in American
Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 (American
Pipe), as adopted by our Supreme Court in Jolly, supra, 44 Cal.3d
1103? We conclude he was.
In Jolly, our Supreme Court summarized the holding of
American Pipe as follows: “[U]nder limited circumstances, if
class certification is denied, the statute of limitations is tolled
8
from the time of commencement of the suit to the time of denial
of certification for all purported members of the class who either
make timely motions to intervene in the surviving individual
action [citation], or who timely file their individual actions.”
(Jolly, supra, 44 Cal.3d at p. 1119.)
The Jolly court identified “two major policy considerations”
underlying the American Pipe tolling rule: (1) protection of
the class action device; and (2) effectuation of the purpose of
the statute of limitations. (Jolly, supra, 44 Cal.3d at p. 1121.)
According to our high court, “[t]he question to be asked” in
determining whether tolling should apply to an absent class
member’s individual claims “is whether [the former] class action
fits the rationale of American Pipe, supra, 414 U.S. 538.” (Ibid.)
Regarding the first consideration, the Jolly court explained:
“In cases where class certification is denied for what the
[American Pipe court] characterized as ‘subtle factors,’
unforeseeable by class members, a rule that failed to protect
putative class members from the statute of limitations after
denial of certification would induce potential class members
to ‘file protective motions to intervene or to join in the event that
a class was later found unsuitable,’ depriving class actions ‘of the
efficiency and economy of litigation which is a principal purpose
of the procedure.’ ” (Jolly, supra, 44 Cal.3d at p. 1121, quoting
American Pipe, supra, 414 U.S. at p. 553; see also Crown, Cork
& Seal Co., Inc. v. Parker (1983) 462 U.S. 345, 350–351.) Thus,
courts must determine whether tolling will “serve[ ] to further
economy and efficiency of litigation, so as to justify affording
plaintiff shelter under the protective umbrella of American Pipe.”
(Jolly, at p. 1122.) That determination will often depend on
whether the claims asserted on behalf of the putative class were
9
sufficiently similar to the absent class members’ individual
claims, so that the absent class members can be found
“reasonably [to] have relied on the [class action] complaint
as a basis for postponing their own” actions. (Id. at p. 1125.)
As for the second consideration, the Jolly court reaffirmed
that statutes of limitations promote the “ ‘policies of ensuring
essential fairness to defendants and of barring a plaintiff who has
“slept on his rights” ’ ” from bringing a stale claim. (Jolly, supra,
44 Cal.3d at p. 1121, quoting American Pipe, supra, 414 U.S. at
p. 554.) Our high court explained these policies “ ‘are satisfied
when . . . a named plaintiff who is found to be representative
of a class commences a suit and thereby notifies the defendants
not only of the substantive claims being brought against them,
but also of the number and generic identities of the potential
plaintiffs who may participate in the judgment.’ ” (Jolly, at
p. 1121, quoting American Pipe, at pp. 554–555.) Adequate notice
to the defendant is key to ensuring fair application of the tolling
rule. In that regard, the Jolly court emphasized the importance
of avoiding a particular abuse that would arise if plaintiffs were
“ ‘free to raise different or peripheral claims following denial
of class status,’ ” and admonished trial courts to “ ‘take care to
ensure that the [subsequent] suit raises claims that “concern
the same evidence, memories, and witnesses as the subject
matter of the original class suit,” so that “the defendant will
not be prejudiced.” ’ ” (Jolly, at p. 1124; see also id. at p. 1125
[instructing lower courts to “exercise discretion in applying
the American Pipe rule in order to ‘prevent the type of abuse
mentioned above and [to] preserve a defendant whole against
prejudice arising from claims for which he has received no prior
notice.’ ”].)
10
In Jolly, application of the tolling rule satisfied neither
underlying policy consideration of American Pipe. (Jolly, supra,
44 Cal.3d at p. 1122.) The original class action had been filed
by Judith Sindell, who sued “on her own behalf and, ‘with respect
to certain relief,’ on behalf of a class of women allegedly similarly
situated.” (Id. at p. 1120; see Sindell v. Abbott Laboratories
(1980) 26 Cal.3d 588 (Sindell).) For herself, individually, Sindell
claimed damages for personal injuries suffered due to her
mother’s ingestion of DES during pregnancy.3 (Jolly, at p. 1120.)
For the class, Sindell sought “only declaratory relief and an order
directing defendants to publicize the dangers of DES.” (Ibid.)
The trial court denied certification, citing “lack of commonality
among class members on issues of proximate cause, extent
of injury, and appropriate medical examination or treatment.”
(Ibid.) While the certification proceedings were pending,
Christine Jolly filed her individual lawsuit for personal injuries
caused by her mother’s prenatal ingestion of DES. (Id. at
pp. 1107–1108.)
Relying on American Pipe, Jolly argued the filing of
the class action in Sindell tolled the statute of limitations for
individual putative class members until certification was denied.
(Jolly, supra, 44 Cal.3d at p. 1118.) Our Supreme Court rejected
the argument, concluding “the Sindell class action complaint
neither sufficiently put defendants on notice of the substance
and nature of plaintiff’s claims, nor served to further economy
3 DES is the synthetic drug estrogen diethylstilbestrol. It
had been prescribed for the prevention of miscarriages before
its association with certain congenital diseases was discovered.
(See Jolly, supra, 44 Cal.3d at p. 1107.)
11
and efficiency of litigation, so as to justify affording plaintiff
shelter under the protective umbrella of American Pipe.” (Id.,
at p. 1122.) Specifically, our high court held the “same
reasons that render certification of mass-tort claims generally
inappropriate render inappropriate the application and extension
of American Pipe . . . to the present case.” (Id., at p. 1123.)
Because Sindell had asserted different claims on behalf
of the class and because the determination of whether someone
suffered injury from prenatal exposure to DES implicated myriad
factual issues, the Jolly court reasoned Sindell’s class complaint
did not put the defendants on notice of Jolly’s substantive claims
or of the generic identities of potential individual plaintiffs like
Jolly. The court explained: “Because of the nature of the Sindell
complaint—as indicated, Judith Sindell did not seek to certify
the class as to personal injury claims, the gravamen of plaintiff’s
complaint—and the differences in issues of fact and law—
plaintiff’s action for damages puts into issue the prenatal
treatment of her mother, the specific form of DES prescribed
(e.g., tablet, capsule), the dosage taken, her mother’s obstetrical
history and many other issues necessarily involved in proving
causation, damages and defenses—the Sindell class suit
[citation] could not have apprised defendants of plaintiff’s
substantive claims. Therefore, plaintiff cannot now claim that
Sindell’s complaint put defendants on notice of allegations
related to personal injury within the statutory period of
limitation so that they might prepare their defense.” (Jolly,
supra, 44 Cal.3d at pp. 1123–1124.)
Likewise, “because the Sindell complaint did not seek
personal injury damages on behalf of the class,” the Jolly court
reasoned “even those absent class members who were aware
12
of that action could not reasonably have relied on the complaint
as a basis for postponing their own personal injury actions.”
(Jolly, supra, 44 Cal.3d at p. 1125.) Thus, refusing to extend the
tolling rule to Jolly’s personal injury claim would “not result in
duplicative litigation of the sort feared by the court in American
Pipe, nor [would] it deprive [the class action device] of its purpose
to further the efficiency and economy of litigation.” (Ibid.)
Having determined the discrepancy in the claims asserted
on behalf of the Sindell putative class and in Jolly’s individual
complaint precluded application of the American Pipe tolling rule,
the Jolly court remarked that it “need not address the broader
question whether in any personal injury mass-tort case the
filing of a class action complaint can serve to toll the statute of
limitations for putative class members when the class ultimately
is denied certification for lack of commonality.” (Jolly, supra,
44 Cal.3d at p. 1125.) Nevertheless, our Supreme Court offered
an admonition for putative class members in such cases:
“We observe, however, that because personal-injury mass-tort
class-action claims can rarely meet the community of interest
requirement in that each member’s right to recover depends
on facts peculiar to each particular case, such claims may
be presumptively incapable of apprising defendants of ‘the
substantive claims being brought against them’ [citation],
a prerequisite, in our view, to the application of American Pipe
[citations]. This being so, putative class members would be
ill advised to rely on the mere filing of a class action complaint
to toll their individual statute of limitations. The presumption,
rather, should be to the contrary—i.e., that lack of commonality
will defeat certification and preclude application of the American
Pipe tolling doctrine.” (Ibid.)
13
3. The Limitations Periods Were Tolled During the
Wesson and Hatgis Class Certification Proceedings
In declining to apply the tolling rule to Hildebrandt’s
claims, our trial court relied upon Batze, supra, 10 Cal.App.5th
440. Like our case, Batze considered whether the statute of
limitations should have been tolled on claims for unpaid overtime
wages brought by three assistant managers of the defendant
supermarket after certification of the same unpaid wage claim
on behalf of a putative class of assistant managers was denied
for lack of commonality. (Id. at pp. 445–446, 482–484.) Our
colleagues in Division Four “discern[ed] no error in the trial
court’s determination that the statute of limitations was
not tolled,” reasoning the denial of certification for lack of
commonality gave rise to a presumption against tolling, and
the trial court had correctly found application of the tolling
rule would not satisfy the “ ‘two major policy considerations’ ”
underlying American Pipe.4 (Batze, at pp. 482–484.) As we
will discuss, there are inconsistencies between the Batze
court’s reasoning and our Supreme Court’s articulation of
these underlying policy considerations in Jolly. Due to
those inconsistencies, we cannot follow Batze in this case.
4 The parties commit considerable portions of their briefing
to discussing this supposed “presumption” from Jolly. The issue
is irrelevant to our disposition of this appeal. The pertinent
passage—one paragraph appearing at the end of the Jolly opinion
—is dicta. (See Jolly, supra, 44 Cal.3d at p. 1125 [observing,
“In light of our disposition, we need not address the broader
question whether in any personal injury mass-tort case the
filing of a class action complaint can serve to toll the statute of
limitations for putative class members when the class ultimately
14
The trial court in Batze “found the discrepancies between
the claims of the members of the putative class were ‘too great
for the [former class] action to have put [the defendant] on notice
that it needed to preserve evidence with respect to every one
of its managers and assistant managers,’ that [the defendant]
had no way of predicting which of the thousands of managerial
employees holding multiple positions in hundreds of locations
would believe themselves to have been deprived of overtime and
decide to bring a suit, and that it would have been unrealistic
to expect that the filing of the [former class] action would have
prompted [the defendant] to maintain all employment records
relating to every managerial employee or to gather evidence and
witness statements pertaining to every managerial employee.”
is denied certification for lack of commonality” (italics added)].)
The passage is a warning to putative class members in “personal
injury mass-tort case[s]” about what their “presumption” should
be when considering whether to “rely” on a class action “to toll
their individual statute of limitations,” given that “personal-
injury mass-tort class-action claims can rarely meet the
community of interest requirement.” (Id. at p. 1125 & fn. 19
[expressing view that “class actions can rarely be appropriate
for resolution of mass tort claims”]; see also Becker v. McMillin
Construction Co. (1991) 226 Cal.App.3d 1493, 1500 (Becker)
[recognizing the “presumption” applies only to “personal injury
mass tort cases”]; Perkin v. San Diego Gas & Electric Co. (2014)
225 Cal.App.4th 492, 504 (Perkin) [same]; cf. Batze, supra, 10
Cal.App.5th at p. 482 [eliding Jolly court’s reference to mass tort
claims].) We do not read this passage as a categorical directive
about what a court must presume in assessing the major policy
considerations underlying American Pipe in every case in which
certification is denied for lack of commonality.
15
(Batze, supra, 10 Cal.App.5th at p. 483.) The Batze court
concluded these were appropriate reasons to refuse tolling, noting
the “evidence presented bore out the [trial] court’s conclusions.”
(Id. at p. 484.) Additionally, the court found the “fact that nearly
200 plaintiffs had already brought individual claims before
the class certification was denied [gave] further support to
the trial court’s ruling, as it demonstrate[d] that denial of
class certification was not unforeseen.” (Ibid.)
We agree with Hildebrandt that the reasons the Batze
court gave for its decision—reasons adopted by our trial court
in refusing to toll the limitations periods on Hildebrandt’s
claims—have no substantive foundation in Jolly or American
Pipe. To begin, as Hildebrandt points out, nothing in Jolly
or American Pipe makes tolling dependent upon whether the
defendant had “a way of predicting” which absent class member
“would believe themselves” injured and “decide to bring a suit.”
(Batze, supra, 10 Cal.App.5th at pp. 483–484.) Indeed, that sort
of factual inquiry into what the defendant could have predicted
about what an absent class member might have believed is
plainly improper under Jolly and American Pipe, which require
the trial court to focus on the class action pleading to determine
whether the defendant had adequate notice sufficient to
effectuate the purpose of the statute of limitations. (Jolly, supra,
44 Cal.3d at p. 1121; American Pipe, supra, 414 U.S. at pp. 554–
555; see also Perkin, supra, 225 Cal.App.4th at pp. 498–500
[trial court made improper “finding of fact” regarding defendant’s
“knowledge of the boundaries” of a fire perimeter in determining
if tolling applied].)
In contrast to the factual inquiry embraced in Batze, Jolly
and American Pipe require only that the original class action
16
complaint “ ‘notifies the defendants . . . of the substantive claims
being brought against them, [and] of the number and generic
identities of the potential plaintiffs who may participate in
the judgment.’ ” (Jolly, supra, 44 Cal.3d at p. 1121, quoting
American Pipe, supra, 414 U.S. at pp. 554–555, italics added.)
As long as the pleading provides this notice, there is no further
requirement that the defendant also be able to predict which
of the potential plaintiffs will decide to bring suit. (See Becker,
supra, 226 Cal.App.3d at p. 1501 [where “identity and number
of potential claimants [was] ascertainable to a significant degree”
from original class action complaint, this “was adequate to give
the required notice,” even though some claimants inevitably
would not bring suit]; cf. Perkin, supra, 225 Cal.App.4th at p. 507
[where “potential plaintiffs were not limited to a set number from
a specific, clearly defined area,” and could have included anyone
“in California claiming that their properties were damaged
in some way” by fire, class action complaint did not provide
adequate notice].)
Jolly provides an instructive contrast to our case and to
Batze. In Jolly, the defendant could not possibly have discerned
from the Sindell complaint the number and generic identities
of potential plaintiffs who might participate in the class action
judgment. The complaint defined the putative class as female
residents of California “ ‘who have been exposed to DES before
birth and who . . . have or may have contracted or in the future
may contract adenocarcinoma or vaginal or cervical adenosis
or precancerous tumors of the breast or cancer of the bladder.’ ”
(Jolly, supra, 44 Cal.3d at p. 1120.) As Jolly recognizes, even
if the defendant could identify all pregnant women who were
administered DES in California during the relevant period,
17
an individualized assessment of “the specific form of DES
prescribed (e.g., tablet, capsule), the dosage taken, [each]
mother’s obstetrical history and many other issues necessarily
involved in proving causation, damages and defenses” would
be required to ascertain which of their daughters actually had
a significant exposure to DES before birth and which of those
women had contracted or might contract the ailments listed in
Sindell’s class definition. (Jolly, at p. 1123.) No such inquiry
is required here.
Unlike in Jolly, there is no reasonable dispute that Staples
was readily able to determine the number and generic identity
of all potential plaintiffs who might have participated in the
Wesson or Hatgis class action judgment, and Staples could do
this without an individualized assessment of intervening factors
related to causation, damages, or even its affirmative defense.
The Wesson class was defined as “[a]ll current and former
employees of [Staples] employed as General Managers at Staples
Superstore retail locations in California [on or after] May 10,
2010.”5 Although the trial court in Wesson found Staples’s
5 The Hatgis class was defined as “All persons employed
by Defendants as General Managers at Staples retail locations
in the State of California between March 11, 2014 and the date
class certification is granted.” (Italics added.) Staples argues
Hatgis could not have given it notice because “Hatgis did not
even involve Superstore [general managers], the position
[Hildebrandt] held.” The record is to the contrary. Although
the trial court in Hatgis limited the class to only Staples Copy
and Print Shop general managers more than a year after Hatgis
filed her complaint, during the relevant tolling period, the class
18
exemption defense required individualized inquiries that
precluded class certification, Staples nevertheless admits it
could identify each and every member of the proposed class.
Under American Pipe and Jolly, nothing more was required.
(See Jolly, supra, 44 Cal.3d at p. 1121; American Pipe, supra,414 U.S. at pp. 554–555.)
Notwithstanding its admission, Staples argues it “cannot
be the law” that it was required to preserve evidence relevant
to the claims of every Superstore general manager in California
“simply because a class action was filed.” The Batze court and
our trial court likewise concluded “it would have been unrealistic
to expect that the filing of the [former class] action would have
prompted [the defendant] to maintain all employment records
relating to every managerial employee or to gather evidence and
witness statements pertaining to every managerial employee.”
(Batze, supra, 10 Cal.App.5th at pp. 483–484.) But neither
American Pipe nor Jolly identified the burden of preserving
evidence as a basis to refuse tolling. On the contrary, these
controlling authorities were concerned with only the prejudice
that would arise if defendants did not receive adequate notice of
definition did include Superstore general managers like
Hildebrandt.
Staples also argues tolling premised on Hatgis is barred
under Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th
276. But Fierro only held that “American Pipe tolling does not
apply to any later class claims.” (Fierro, at p. 291.) Hildebrandt
argues his individual claims—specifically, his individual claim
for failure to pay wages upon termination—were tolled during
the pendency of the Hatgis class certification proceedings.
Fierro is inapposite.
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the substantive claims and generic identity of potential plaintiffs
“within the statutory period of limitation so that they might
prepare their defense.” (Jolly, supra, 44 Cal.3d at pp. 1123–1124;
American Pipe, supra, 414 U.S. at p. 562.)
Part of preparing a defense is preserving and gathering
evidence relevant to a claim. As discussed, the Wesson and
Hatgis complaints put Staples on notice that it faced Labor
Code and UCL violation claims stemming from its blanket
classification of all general managers as exempt employees
and alleged failure to pay required wages. And Staples admits
the class definitions allowed it to identify all the potential
plaintiffs who might assert those claims within the statutory
period of limitations. Staples therefore had sufficient notice to
allow it to gather and preserve evidence in preparing its defense.
(See Becker, supra, 226 Cal.App.3d at pp. 1501–1502 [where
former class action made the defendant “ ‘aware of the need to
preserve evidence and witnesses respecting the claims of all
the members of the class,’ ” lack of commonality was “not fatal
to the existence of an adequate degree of notice to the defendant
for purposes of applying the tolling rule” (italics added)].)
While the burden placed on a defendant to preserve
evidence is not a relevant consideration, the burden placed on
the courts is. The relevant policy consideration is “protection of
the class action device”—specifically, “ ‘the efficiency and economy
of litigation which is a principal purpose of the procedure.’ ”
(Jolly, supra, 44 Cal.3d at pp. 1121, 1125, italics added.)
When the trial court addressed this policy consideration,
it concluded Hildebrandt could not have reasonably relied upon
certification of the Wesson class because Hildebrandt was “in
communication with counsel in Wesson” and class certification
20
was “vigorously contested.” These facts, the trial court reasoned,
“reflect[ed] denial of class certification was not unforeseeable.”
The Batze court similarly found the plaintiffs could not have
reasonably relied on the former class action in waiting to file
their claims because “nearly 200 plaintiffs had already brought
individual claims before the class certification was denied.”
(Batze, supra, 10 Cal.App.5th at p. 484.) Neither of these
reasons is consistent with the relevant policy consideration.
As Hildebrandt points out, nothing in American Pipe or
Jolly suggests we should consider whether class certification
was “vigorously contested” or whether absent class members
“had already brought” protective individual actions in assessing
whether tolling is necessary to protect the class action device.
Instead, American Pipe and Jolly hold that tolling during class
proceedings is necessary because, without a tolling rule, class
members would be “induce[d]” to “ ‘file protective motions to
intervene’ ” thereby “depriving class actions ‘of the efficiency
and economy of litigation which is a principal purpose of the
procedure.’ ” (Jolly, supra, 44 Cal.3d at pp. 1121, 1125, italics
added.)
Again, Jolly provides an instructive contrast. In evaluating
whether application of the tolling rule was necessary to protect
the class action device, our Supreme Court did not focus on the
individualized evidence that would be necessary to prove Jolly’s
claims. Nor did our high court consider whether Jolly should
have known certification of the Sindell class would be denied for
lack of commonality. Rather, the court’s analysis turned on the
difference between the claims asserted in the class action and in
Jolly’s individual action, and whether it was reasonable for Jolly
to postpone bringing her action in light of that difference. The
21
Jolly court explained: “[B]ecause the Sindell complaint did not
seek personal injury damages on behalf of the class, even those
absent class members who were aware of that action could not
reasonably have relied on the complaint as a basis for postponing
their own personal injury actions.” (Jolly, supra, 44 Cal.3d at
p. 1125, italics added.) And, because the claims were different,
the Jolly court held declining to apply the class action tolling
rule would “not result in duplicative litigation of the sort feared
by the court in American Pipe, nor [would] it deprive [the class
action device] of its purpose to further the efficiency and economy
of litigation.” (Ibid., citing American Pipe, supra, 414 U.S. at
p. 553.)
Staples does not dispute that Hildebrandt asserted the
same Labor Code and UCL violations that the Wesson and Hatgis
complaints asserted on behalf of their respective putative classes.
A comparison of the complaints also confirms Hildebrandt and
Wesson based their claims on the same underlying allegation
that Staples misclassified its general managers as exempt
employees despite requiring them to spend over 50 percent of
their working hours performing duties delegated to non-exempt
employees. Likewise, Hildebrandt asserted the same claim for
failure to pay wages upon termination that Hatgis asserted on
behalf of the putative class in her case. And, unlike mass tort
personal injury claims, these misclassification and unpaid wage
claims are not presumptively unsuitable for class treatment. (Cf.
Jolly, supra, 44 Cal.3d at p. 1126, fn. 19 [“class actions can rarely
be appropriate for resolution of mass tort claims”]; Duran v. U.S.
Bank National Assn. (2014) 59 Cal.4th 1, 37–38 [“A class action
trial may determine that an employer is liable to an entire class
for misclassification if it is shown that the employer had a
22
consistently applied policy or uniform job requirements.”];
Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th
362, 380 [misclassification claim seeking unpaid overtime wages
on behalf of managerial employees of restaurant chain was
amenable to common proof where “parties ha[d] identified a finite
task list, suggesting that jobs . . . were ‘highly standardized’ ”];
Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301
[common legal and factual issues predominated misclassification
claims for unpaid overtime, meal and rest break violations, and
wage statement violations].)
Thus, under Jolly, Hildebrandt could “reasonably have
relied on the [Wesson and Hatgis] complaint[s] as a basis for
postponing” the filing of his own claims. (Jolly, supra, 44 Cal.3d
at p. 1125.) Were we to hold the limitations periods on these
claims were not tolled during a class certification proceeding in
which the same claims were asserted on behalf of Hildebrandt as
a member of the putative class, there is little doubt our holding
would induce absent class members in future misclassification
cases to file protective individual actions for fear their claims
might be time barred, thus depriving the class action of the
efficiency and economy of litigation that is its principal purpose.
(Jolly, at p. 1121; American Pipe, supra, 414 U.S. at p. 553.)
The Wesson and Hatgis complaints gave Staples adequate
notice of Hildebrandt’s potential claims. There is no prejudice
to Staples. Tolling is therefore appropriate, and the statute
of limitations must give way to the stronger consideration:
protection of the class action device. (Cf. Jolly, supra, 44 Cal.3d
at pp. 1123–1124 [prejudice to defendant is “alone sufficient” to
deny tolling relief]; see Becker, supra, 226 Cal.App.3d at p. 1502
[application of tolling rule was “fair” where the defendant had
23
adequate notice of claims and generic identity of claimants,
thus “equitable principles” underlying tolling rule prevailed
over statute of limitations].)
With the exception of the claim for failure to furnish
accurate itemized wage statements, the trial court erred
in ruling Hildebrandt’s claims were time barred.
DISPOSITION
The summary adjudication of Hildebrandt’s claim for
failure to furnish accurate itemized wage statements is affirmed.
In all other respects the summary judgment is reversed.
Hildebrandt is awarded costs.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
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