Brinker Restaurant Corp. v. Super. Ct.

Filed 10/12/07 Brinker Restaurant Corp. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BRINKER RESTAURANT
CORPORATION et al.,
Petitioners,
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
ADAM HOHNBAUM et al.,
Real Parties in Interest.
D049331
(San Diego County
Super. Ct. No. GIC834348)
Petition for writ of mandate after the superior court issued an order certifying a
class. Patricia A.Y. Cowett, Judge. Petition granted with directions.
Plaintiffs and real parties in interest Adam Hohnbaum, Illya Haase, Romeo
Osorio, Amanda June Rader and Santana Alvarado (collectively plaintiffs) sued
defendants Brinker Restaurant Corporation, Brinker International, Inc., and Brinker

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International Payroll Company, L.P. (collectively Brinker) on behalf of themselves and
similarly situated current and former California hourly restaurant employees of Brinker
(the proposed class), alleging that Brinker had violated numerous California wage and
hour laws and California's unfair competition law (Bus. & Prof. Code, § 17200 et seq.).
Specifically, plaintiffs alleged that Brinker failed to provide certain rest breaks or meal
periods, or compensation in lieu thereof, to members of the proposed class as required by
the California Labor Code1 and implementing regulations of the Industrial Welfare
Commission (IWC),2 and also required them to "work off the clock" during meal
periods.
Brinker petitions for a peremptory writ of mandate directing the trial court to
vacate an order certifying the proposed class. The principal question presented in this
mandamus proceeding is whether the trial court abused its discretion in certifying the
class based on its determination that common questions regarding meal periods and rest
1 All further statutory references are to the Labor Code unless otherwise specified.
2 The IWC is the state agency in the Department of Industrial Relations
"'empowered to formulate regulations (known as wage orders) governing employment in
the State of California.'" (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 581.)
"It is the continuing duty of the [IWC] . . . to ascertain the wages paid to all employees in
this state, to ascertain the hours and conditions of labor and employment in the various
occupations, trades, and industries in which employees are employed in this state, and to
investigate the health, safety, and welfare of those employees." (§ 1173.) The IWC is
comprised of five members appointed by the Governor. (§ 70.) "Although the IWC was
defunded by the Legislature effective July 1, 2004, its wage orders remain in effect.
[Citation.]" (Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 434, fn. 2.)

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breaks─specifically, the "common legal issue" of "what [Brinker] must do to comply
with the Labor Code"─predominate over individual issues.
We conclude that the class certification order is erroneous and must be vacated
because (1) the order rests on improper criteria and incorrect assumptions with respect to
the rest break claims, and the court abused its discretion in finding that those claims are
amenable to class treatment; (2) the court's "rolling five-hour" meal period ruling in its
July 2005 order was erroneous, and thus the class certification order rests on improper
criteria with respect to the rolling five-hour meal period claims; (3) the class certification
order rests on an incorrect assumption with respect to the meal period claims to the extent
those claims are based on the theory that Brinker had a duty to ensure that its hourly
employees took the meal periods it provided to them, and thus the court abused its
discretion in finding that these claims are amenable to class treatment; and (4) the court
incorrectly assumed it did not have to examine the elements of plaintiffs' "off-the-clock"
claims, and thus abused its discretion by finding without such an examination that those
claims are amenable to class treatment. Accordingly, we order that a peremptory writ
shall issue with directions that the superior court vacate its order granting class
certification.
FACTUAL AND PROCEDURAL BACKGROUND
A. Brinker and Its Written Policies
Brinker operates 137 restaurants in California, including Chili's Grill & Bar,
Romano's Macaroni Grill, and Maggiano's Little Italy. Brinker previously owned the

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Cozymel's and Corner Bakery Café chains, but sold the former in late 2003 and the latter
in early 2006.
1. Rest break and meal period policy
Brinker's written policy regarding unpaid meal periods and paid rest breaks, titled
"Break and Meal Period Policy for Employees in the State of California," provides that
employees are "entitled to a 30-minute meal period" when they "work a shift that is over
five hours." It also provides that employees who clock out for a meal period "must clock
out for a minimum of 30 minutes." It also states that employees who work "over 3.5
hours" during a shift are "eligible for one [10-]minute rest break for each 4 hours that
[they] work." The policy also provides that an employee's failure to follow the foregoing
policies "may result in disciplinary action up to and including termination."
2. Working off the clock policy
With respect to the issue of working off the clock, Brinker's "Hourly Employee
Handbook" states in part: "It is your responsibility to clock in and clock out for every
shift you work. . . . [Y]ou may not begin working until you have clocked in. Working
'off the clock' for any reason is considered a violation of Company policy."
B. 2002 Settlement of Regulatory Action Against Brinker Restaurant Corporation
The California Division of Labor Standards Enforcement (DLSE)3 investigated
Brinker Restaurant Corporation's compensation practices from October 1, 1999 to
3 "The DLSE 'is the state agency empowered to enforce California's labor laws,
including IWC wage orders.' [Citation.]" (Morillion v. Royal Packing Co., supra, 22
Cal.4th at p. 581.)

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December 31, 2001, regarding its hourly restaurant employees in California. Among
other things, the DLSE investigated Brinker Restaurant Corporation's alleged failure to
(1) provide unpaid meal periods as required by law, and, starting on October 1, 2000, pay
premium wages to employees who were not provided with meal periods as required
under section 226.7 and a specified IWC wage order; and (2) provide paid 10-minute rest
breaks as required by law, and, starting on October 1, 2000, pay premium wages to
employees who were not provided with such rest breaks as required under section 226.7
and the specified IWC wage order.
In 2002, after DLSE filed suit against Brinker Restaurant Corporation in the Los
Angeles County Superior Court (the DLSE lawsuit),4 but before DLSE completed its
investigation and thus before it reached any final conclusions as to liability and damages,
Brinker Restaurant Corporation and DLSE entered into a settlement and release
agreement (the DLSE settlement) under which Brinker Restaurant Corporation (1) paid
$10 million to settle the DLSE lawsuit, and (2) agreed to a court-ordered injunction to
ensure its compliance with California meal period and rest break laws until September
2006.
4 Division of Labor Standards Enforcement v. Brinker Restaurant Corporation
(Super. Ct. Los Angeles County, 2002, No. BC279138).

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C. Operative First Amended Complaint
Plaintiffs' operative March 2006 first amended complaint (hereafter the complaint)
alleges three types of wage and hour violations that are pertinent to the issues raised in
this appeal:
1. Alleged rest break violations
In their first cause of action, plaintiffs allege Brinker willfully violated section
226.7 and IWC Wage Orders Nos. 5-1998, 5-2000 and 5-2001 (hereafter collectively
referred to as IWC Wage Order No. 5) by "fail[ing] to provide rest periods for every four
hours or major fraction thereof worked per day to non-exempt employees, and failing to
provide compensation for such unprovided rest periods." Plaintiffs also allege that as a
result of these alleged unlawful acts, they and the members of the proposed class are
entitled to recover premium wages and other relief under sections 226, 226.7 and IWC
Wage Order No. 5.
In a related claim, plaintiffs also allege in their first cause of action that Brinker
violated IWC Wage Order No. 5 and sections 226, subdivision (a), and 1174 by
knowingly and intentionally failing to "itemize in wage statements and to accurately
report total hours worked by Plaintiffs and the members of the proposed Class."
2. Alleged meal period and "early lunching" violations
In their second cause of action, plaintiffs allege Brinker violated sections 226.7
and 512, and IWC Wage Order No. 5, by failing to "provide meal periods for days on
which non-exempt employees work(ed) in excess of five hours, or by failing to provide
meal periods [altogether], or to provide second meal periods for days employees worked

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in excess of [10] hours, and failing to provide compensation for such unprovided or
improperly provided meal periods." Plaintiffs claim that Brinker engages in unlawful
early lunching by requiring its employees to take their meal periods soon after they arrive
for their shifts, usually within the first hour, and then requiring them to work in excess of
five hours, and sometimes more than nine hours straight, without an additional meal
period. Plaintiffs also allege that as a result of these alleged unlawful acts, they and the
members of the proposed class are entitled to recover premium wages and other relief
under sections 226 and 226.7, and IWC Wage Order No. 5.
Plaintiffs also claim in their second cause of action that Brinker violated IWC
Wage Order No. 5 and sections 226, subdivision (a), and 1174 by knowingly and
intentionally failing to "itemize in wage statements and to accurately report total hours
worked by Plaintiffs and the members of the proposed Class."
3. Alleged off-the-clock/time shaving violations
In their third claim, plaintiffs allege Brinker unlawfully required its employees to
work off the clock during meal periods. Although this claim is not expressly set forth in
the complaint, the court approved a stipulated amendment to the complaint under which
(1) that pleading "include[s] allegations that employees worked 'off the clock' without
setting forth those allegations with specificity"; and (2) plaintiffs' allegations with respect
to off-the-clock work "shall be limited to: (a) time worked during a meal period when an
individual was clocked out; and (b) time 'shaving,' which is defined as an unlawful

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alteration of an employee's time record to reduce the time logged so as to not accurately
reflect time worked."5
D. Cross-Motions on Plaintiffs' Rolling Five-Hour Meal Period Claim
In May 2005, pursuant to a court-approved stipulation in anticipation of mediation
that ultimately failed, the parties submitted briefing to the court in the form of cross-
motions on plaintiffs' rolling five-hour meal period claim. Specifically, the parties
briefed the legal issue of "whether [Brinker] was required to provide a meal period for
each five-hour block of time worked by an hourly employee."6 In their motion, plaintiffs
asserted that "Brinker's policy of requiring their employees to work for periods of over
[five] continuous hours without a meal break violates [IWC Wage Order No. 5], as well
as [sections] 512 and 226.7."
In its motion, Brinker argued it was only required to "provide a first meal period to
its hourly, non-exempt employees when such employees worked more than five hours
and that [it] was required to provide a second meal period to [those] employees only after
[they] worked more than [10] hours in a workday."
5 In their subsequent motion for class certification (discussed, post), plaintiffs
defined "time shaving" as "Brinker['s] practice of shaving time from employee payroll
records to reflect less than a five (5) hour shift."
6 The parties' briefing also addressed two other legal issues not pertinent to this writ
proceeding: (1) what is the effect of Brinker's previous settlement of the DLSE lawsuit;
and (2) "whether the applicable statute of limitations for claims for rest and meal period
violations [of section 226.7] is [one] year or [four] years."

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Plaintiffs asserted in their written opposition to Brinker's motion that while rest
breaks "need only be 'authorized and permitted,' . . . the employer must 'ensure' that the
employee takes meal periods." (Italics added.) Acknowledging that the 10-hour second
meal period provision in section 512 was not at issue in this case, plaintiffs also
addressed their early lunching claim, asserting that Brinker's payroll records showed that
Brinker was "forcing employees to take their meal period right after they report to work,"
and thus it was "impossible for [Brinker] to comply with the applicable wage orders as [it
was] not providing morning rest periods to [its] employees which precede the meal
period. Instead, they [were] giving employees their meal periods as soon as they
arrive[d] to work and then working them up to [10] additional hours without an
additional meal break." (Italics added.) Plaintiffs asked the court to find that "by failing
to provide second meal periods to employees required to work in excess of five hours
before or after a meal," Brinker was violating IWC Wage Order No. 5, and plaintiffs and
the members of the proposed class were entitled to compensation under section 226.7.
1. July 2005 meal period "advisory opinion" and order
On July 1, 2005, the court issued a written tentative advisory opinion on the issue
of when an employer must provide a meal period to an hourly employee under section
512. The court found that, under that section, a meal period "must be given before [an]
employee's work period exceeds five hours." (Italics added.) The court stated that "the
DLSE wants employers to provide employees with break periods and meal periods
toward the middle of an employee[']s work period in order to break up that employee's
'shift.'" Thereafter, on July 15 of that year, the court issued a minute order (hereafter the

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July 2005 order) stating the "advisory ruling" was "confirmed by the court as an order."7
(Italics added.)
E. Brinker's First Writ Petition (Challenging the July 2005 Meal Period Order)
In November 2005 Brinker filed its first petition for writ of mandate (D047509) in
this matter. In the petition, Brinker challenged the court's July 2005 meal period order.
Specifically, Brinker requested a writ directing the trial court to "vacate its earlier order
holding that: (1) a non-exempt employee is entitled to a meal period for each five-hour
block of time worked[; and] (2) the premium pay owed for a violation of [section 226.7]
is a wage." (Italics added.)
In support of its petition, Brinker argued the trial court erred by interpreting
section 512 to mean that an hourly employee's entitlement to a meal period is "rolling,"
such that "a separate meal period must be provided for each five-hour block of time
worked . . . regardless of the total hours worked in the day. In other words, the [court]
interpreted the law to be that . . . [o]nce a meal period concludes, the proverbial clock
starts ticking again, and if the employee works five hours more, a second meal period
must be provided."
7 In mid-October 2006, during a hearing concerning discovery after this court
denied Brinker's first writ petition (discussed, post) in January of that year, and after the
trial court granted plaintiffs' class certification motion in July of that year, plaintiffs'
counsel argued that the trial court, at an ex parte hearing on July 15, 2005, had confirmed
the advisory opinions it had previously issued on July 1 of that year, and Brinker
"understood them perfectly well to be orders because they took a writ on them." (Italics
added.) As we shall explain, post, we conclude upon further review that plaintiffs'
counsel was correct.

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Brinker also argued that although an employee working more than five hours and
less than 10 hours is entitled under section 512 to a 30-minute meal period at some point
during the workday, "nothing in [s]ection 512 . . . requires a second meal period be
provided solely because [the] employee works five hours after the end of the first meal
period, where the total time worked is less than [10] hours." Brinker further asserted that
IWC Wage Order No. 5 also "does not dictate the anomalous result that meal periods
must be provided every five hours" because, like section 512, it requires only that an
employee working more than five hours "gets a meal period at some point during the
workday." [Fn. omitted.] Brinker complained that the court's meal period ruling
"requires servers to sit down, unpaid, during the most lucrative part of their working
day."
By order dated January 20, 2006, this court denied Brinker's first petition on the
ground writ relief was not available to challenge an advisory opinion.
F. Plaintiffs' Motion for, and the Court's Order Granting, Class Certification
1. Class certification motion
In April 2006 plaintiffs moved to certify a class of "[a]ll present and former
employees of [Brinker] who worked at a Brinker[-]owned restaurant in California,
holding a non-exempt position, from and after August 16, 2000 ('Class Members')." In
their moving papers, plaintiffs alternatively defined the class as "all hourly employees of
restaurants owned by [Brinker] in California who have not been provided with meal and
rest breaks in accordance with California law and who have not been compensated for
those missed meal and rest breaks." In a footnote, plaintiffs stated that the compensation

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they had not received for the "missed meal and rest breaks" included "'off-the-clock' work
as [Brinker] engage[s] in several practices to avoid providing meal breaks known as,
'time shaving;' inserting meal periods into payroll records when they were not provided;
and forcing employees to work 'off-the-clock' during meal breaks." The class in question
is estimated to consist of more than 59,000 Brinker employees.
Plaintiffs' motion also sought certification of six subclasses, three of which are
pertinent to this appeal: (1) a "Rest Period Subclass," consisting of "Class Members who
worked one or more work periods in excess of three and a half (3.5) hours without
receiving a paid 10 minute break during which the Class Member was relieved of all
duties, from and after October 1, 2000"; (2) a "Meal Period Subclass," consisting of
"Class Members who worked one or more work periods in excess of five (5) consecutive
hours, without receiving a thirty (30) minute meal period during which the Class Member
was relieved of all duties, from and after October 1, 2000"; and (3) an "Off-The-Clock
Subclass," consisting of "Class Members who worked 'off-the-clock' or without pay from
and after August 16, 2000."
Plaintiffs asserted that "[Brinker's] corporate policies of improper early meals,
time shaving, failure to provide meal periods altogether or for less than [30] minutes,
failure to provide rest periods, and forcing 'off-the-clock' work, are centralized and
common to the Class." They stated that "[u]tilization of the class action vehicle is the
superior method of trying this case, due to the fact that [Brinker] maintain[s] data and
reports in 'searchable' format . . . that specifically identify the number of employees who
are not receiving meal breaks for every [five] hours worked, not receiving meal periods at

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all, and the instances where time cards have been manipulated, known at Brinker as
'time-shaving.'" Plaintiff further stated that "[t]his case can be easily tried as a class
action with the use of statistical evidence to prove the effects of company-wide policies
and practices on the Class Members."
In support of their contentions that class-wide proof exists and common questions
predominate, plaintiffs submitted several attorney declarations, 26 declarations of current
and former Brinker employees, and other documentary evidence. In this writ proceeding,
plaintiffs represent that the employee declarations they submitted presented evidence that
"they were routinely precluded from taking meals for every five hours of work or rest
breaks for every three and a half hours of work"; "they were required to work 'off-the-
clock' during their meal periods"; and "they did not 'waive' their meal period or rest
breaks, but . . . rather, they were not relieved of work duties so that they could take
them." (Italics added.)
2. Brinker's opposition
In its written opposition to the class certification motion, Brinker argued that a rest
break class should not be certified because (1) under IWC Wage Order No. 5, paid rest
breaks need only be permitted, not necessarily taken; (2) Brinker permitted its employees
to take rest breaks; (3) whether individual employees took the rest breaks that Brinker
provided required a "hopelessly individualized" inquiry; and (4) individual issues thus
predominated.
Brinker next argued that a meal period class should not be certified because (1)
under sections 512 and 226.7, unpaid meal periods need only be provided, not necessarily

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taken; (2) plaintiffs' "rolling, five-hour approach to meal periods," which "would call for
a second meal period for work days with fewer than 10 hours unless the first meal is
taken exactly mid-shift" (original italics), was wrong because "[u]nder the plain language
of [s]ection 512, an employee working more than five hours, but fewer than 10, is entitled
to one 30-minute meal period at some point during the work day," and "[s]ection 512 on
its face calls for a second meal period only when more than 10 hours are worked"; (3)
Brinker provided all required meal periods to its employees; (4) whether each employee
was provided with meal periods as required by law "var[ied] person-by-person, shift-by-
shift, and day-by-day," and "involve[d] hundreds of individualized inquiries"; and (5)
individual issues thus predominated.
Brinker also argued that plaintiffs' off-the-clock claim should not be certified as a
class action claim because (1) plaintiffs had not cited any Brinker policy to alter time
records or permit off-the-clock work, and Brinker has a policy expressly prohibiting such
work; (2) plaintiffs had no proof of "class-wide off-the-clock work"; (3) even if off-the-
clock work occurred, Brinker could not be held liable unless it "suffered or permitted the
work"; and (4) any off-the-clock work would have to be individually proven.
In support of its opposition to the class certification motion, Brinker submitted
more than 600 declarations from hourly workers, and almost 30 declarations from
managers.
3. Plaintiffs' reply
Plaintiffs submitted a reply brief and supplemental evidence. They asserted that
"[f]ive class-wide issues of law and fact can be tried jointly in this case: [¶] 1. Whether

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Brinker's hourly employees receive a meal period for every [five] hours worked in
compliance with [section] 512; [¶] 2. Whether Brinker fails to provide uninterrupted [30]-
minute meal periods; [¶] 3. Whether Brinker fails to permit rest periods, i.e., discourages
rest periods; [¶] 4. Whether Brinker's practice of 'time-shaving' and its insertion of meal
periods that did not occur violates [IWC Wage Order No. 5] and [section] 226.7; and, [¶]
5. The amount or formula for compensation owed for these violations."
Plaintiffs elaborated on their meal period, rest break, and off-the-clock claims:
a. Meal period claims
With respect to their meal period claims, plaintiffs asserted in their reply papers
that under the court's July 2005 order, Brinker was required to provide its employees with
a meal period for every five hours worked, and common issues predominated on
plaintiffs' rolling five-hour meal period claim.
Plaintiffs maintained that common issues predominate on their claims for "missed
or inadequate meal periods." Citing Cicairos v. Summit Logistics, Inc. (2005) 133
Cal.App.4th 949, 962-963, plaintiffs asserted that employers have an affirmative duty to
ensure employees receive meal periods, and the waiver provisions of section 512 "cannot
rationally be interpreted to mean the 'mutual consent' of employer and employee required
to waive meal periods is relaxed to a lesser standard permitting employees to 'informally
decline' (without obtaining the employer's consent)" because such an interpretation "flies
in the face of the affirmative obligation placed upon the employer to relieve employees
for meal periods enunciated in Cicairos."

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Plaintiffs also stated that "[Brinker's claims that] it can meet its legal obligation to
'provide' meal periods by 'making them available,' and that employees may 'informally
decline' them" was erroneous, because Cicairos [v. Summit Logistics, Inc., supra, 133
Cal.App.4th 949] "confirm[s] that meal periods may not be waived (or 'informally
declined')." (Italics added.) Section 512, plaintiffs argued, "permits a waiver in just two
scenarios: for shifts between five and six hours upon mutual consent and for second meal
periods where the first has not been waived." Thus, plaintiffs stated, "Brinker stretches
the language of [s]ection 512 beyond logic to argue the statute permits employees to
'informally decline' meal periods." In a footnote, plaintiffs stated that Brinker had
implemented a corporate policy that "discourages servers from taking their breaks. The
uniform policy is that if you take a break you must transfer your tables and give up your
tips."
b. Rest break claims
Claiming that common issues predominate on their rest break claims, plaintiffs
asserted they "presented corporate policy evidence of a pattern and practice by Brinker of
failing to provide a rest period prior to employees' meal period as a result of its practice
of scheduling meals early." Specifically, plaintiffs argued that "Brinker maintains
company-wide policies discouraging rest periods, including requiring servers to give up
tables and tips if they want a break and failing to provide rest periods prior to scheduled
early meals."

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c. Off-the-clock meal period claims, including their claim for time-shaving
Last, claiming that common issues also predominate on their "off-the-clock" meal
period claims, plaintiffs stated, "Plaintiffs' submissions . . . provide evidence employees
were asked to work while clocked out for meals." Noting they had limited their off-the-
clock claims "to those relating to meal periods," plaintiffs also asserted that "Brinker's
corporate records prove their 'time-shaving' claim. When entries are manipulated to
delete time from an employee's shift to bring it under five hours, records reflect that
change."
4. Order granting class certification
Following issuance of a tentative ruling on plaintiffs' class certification motion,
and after a hearing thereon, the court took the matter under submission. On July 6, 2006,
the court issued its order granting the motion and certifying the proposed class (class
certification order), finding that "common issues predominate over individual issues."
The court specifically found that "common questions regarding the meal and rest period
breaks are sufficiently pervasive to permit adjudication in this one class action. [¶]
[Brinker's] arguments regarding the necessity of making employees take meal and rest
periods actually points to a common legal issue of what [Brinker] must do to comply with
the Labor Code. Although a determination that [Brinker] need not force employees to
take breaks may require some individualized discovery, the common alleged issues of
meal and rest violations predominate." (Italics added.) Brinker's writ petition followed.

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DISCUSSION
In this purported class action, plaintiffs have asserted three pertinent categories of
wage and hour claims against Brinker, alleging various violations of sections 512 and
226.7, IWC Wage Order No. 5, and California's unfair competition law (Bus. & Prof.
Code, § 17200 et seq.): (1) rest break claims; (2) meal period claims; and (3) off-the-
clock claims.
In certifying the proposed class and subclasses of Brinker employees, the court
generally found that "[c]ommon issues predominate over individual issues" and stated
that "common questions regarding the meal and rest period breaks are sufficiently
pervasive to permit adjudication in this one class action." However, the court identified
only one specific common issue, which it characterized as a "common legal issue":
"[W]hat [Brinker] must do to comply with the Labor Code."
For reasons we shall explain, we conclude the court abused its discretion by (1)
determining that common issues, rather than questions affecting the individual class
members, would predominate at trial; and (2) certifying the proposed class and subclasses
without first determining as to each type of claim both the theory of liability and the
elements that must be proven to hold Brinker liable. We also conclude that the court's
class certification order was based upon improper criteria and incorrect assumptions.
A. Applicable Legal Principles
The California Supreme Court has explained that "[t]he decision to certify a class
rests squarely within the discretion of the trial court, and we afford that decision great
deference on appeal, reversing only for a manifest abuse of discretion: 'Because trial

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courts are ideally situated to evaluate the efficiencies and practicalities of permitting
group action, they are afforded great discretion in granting or denying certification.'
[Citation.] A certification order generally will not be disturbed unless (1) it is
unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on
erroneous legal assumptions. [Citations.]" (Fireside Bank v. Superior Court (2007) 40
Cal.4th 1069, 1089 (Fireside Bank), italics added.) A class certification order "based
upon improper criteria or incorrect assumptions calls for reversal '"even though there
may be substantial evidence to support the court's order."' [Citations.]" (Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 436 (Linder), italics added.)
The standards for class certification in California are well established. "Code of
Civil Procedure section 382 authorizes class actions 'when the question is one of a
common or general interest, of many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court.'" (Sav-On Drug Stores, Inc. v. Superior
Court (2004) 34 Cal.4th 319, 326 (Sav-On).) The party seeking class certification has the
burden to establish "(1) . . . a sufficiently numerous, ascertainable class, (2) . . . a well-
defined community of interest, and (3) that certification will provide substantial benefits
to litigants and the courts, i.e., that proceeding as a class is superior to other methods."
(Fireside Bank, supra, 40 Cal.4th at p. 1089; Sav-On, supra, 34 Cal.4th at p. 326.) In
turn, "the 'community of interest requirement embodies three factors: (1) predominant
common questions of law or fact; (2) class representatives with claims or defenses typical
of the class; and (3) class representatives who can adequately represent the class.'
[Citation.]" (Fireside Bank, supra, 40 Cal.4th at p. 1089, italics added; Sav-On, supra,

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34 Cal.4th at p. 326.) Here, the parties to this writ proceeding contest only the first factor
of predominance.
Whether certification of a class is appropriate is "essentially a procedural
[question] that does not ask whether an action is legally or factually meritorious."
(Linder, supra, 23 Cal.4th at pp. 439-440.) "A trial court ruling on a certification motion
determines 'whether . . . the issues which may be jointly tried, when compared with those
requiring separate adjudication, are so numerous or substantial that the maintenance of a
class action would be advantageous to the judicial process and to the litigants.'
[Citations.]" (Sav-On, supra, 34 Cal.4th at p. 326, italics added.)
However, the trial court's determination of whether it should certify a class will
often involve some inquiry, although perhaps a general one, into the factual and legal
issues comprising the plaintiff's causes of action. (Caro v. Proctor & Gamble Co. (1993)
18 Cal.App.4th 644, 656.) The critical inquiry on a class certification motion is whether
"the theory of recovery advanced by the proponents of certification is, as an analytical
matter, likely to prove amenable to class treatment." (Sav-On, supra, 34 Cal.4th at p.
327, italics added.) In order to determine whether common questions of law or fact
predominate, "the trial court must examine the issues framed by the pleadings and the law
applicable to the causes of action alleged." (Hicks v. Kaufman and Broad Home Corp.
(2001) 89 Cal.App.4th 908, 916 (Hicks), italics added, fn. omitted, citing Vasquez v.
Superior Court (1971) 4 Cal.3d 800, 810-811.)

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B. Analysis
1. Rest Break Claims
In their complaint, plaintiffs allege that Brinker willfully violated section 226.7
and IWC Wage Order No. 5 by "fail[ing] to provide rest periods for every four hours or
major fraction thereof worked per day to non-exempt employees, and failing to provide
compensation for such unprovided rest periods." However, in their return to Brinker's
writ petition, plaintiffs cite DLSE's opinion letter dated September 17, 2001 (2001 DLSE
opinion letter) for the proposition that section 512 and IWC Wage Order No. 5 require a
10-minute rest break "for every three and a half hours of work" (italics added) and a first
rest break before the first meal period. Plaintiffs also contend that Brinker's "uniform rest
break policy"8 violates section 512 and IWC Wage Order No. 5 because (1) the policy
"does not make a rest break available to employees until after they have worked at least
four hours" (italics added), and (2) it does not provide for a rest break before the first
meal period.
Brinker argues that if the court had correctly determined the underlying elements
of plaintiffs' rest break claims, it "could only have concluded that individual issues
predominate." Brinker also argues that by "presum[ing] that the underlying elements of
plaintiffs' claims were common questions that justified class certification, rather than
preliminary issues that it was required to resolve in order to render an informed
8 Brinker's uniform written policy regarding paid rest breaks states that employees
who work "over 3.5 hours" during a shift are "eligible for one [10-]minute rest break for
each 4 hours that [they] work."

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certification decision," the court conducted its predominance analysis under an incorrect
assumption that warrants reversal of the certification order regarding plaintiffs' rest break
claims. We conclude that Brinker's arguments are well taken.
Plaintiffs' contention that Brinker's rest break policy violates section 512 is
unavailing. As we shall discuss, post, section 512 governs the scope of an employer's
obligation to provide meal periods, not rest breaks.
Plaintiffs' contention that IWC Wage Order No. 5 requires (1) a 10-minute rest
break for every three and a half hours of work, and (2) a rest break before the first meal
period, is also unavailing. Section 226.7, subdivision (a) provides: "No employer shall
require any employee to work during any meal or rest period mandated by an applicable
order of the [IWC]." (Italics added.) For purposes of section 226.7, IWC Wage Order
No. 5-2001, which became operative on January 1, 2001, and governs an employer's
obligations with respect to rest breaks, is the current IWC wage order at issue in this writ
proceeding.9 The pertinent provisions of IWC Wage Order No. 5-2001 are codified in
California Code of Regulations, title 8, section 11050, subdivision 12(A), which
9 With exceptions not applicable here, IWC Wage Order No. 5-2001 applies to "all
persons employed in the public housekeeping industry, whether paid on a time, piece
rate, commission, or other basis." (Cal. Code Regs., tit. 8, § 11050, subd. 1.) It defines
"public housekeeping industry" to mean "any industry, business, or establishment which
provides meals, housing, or maintenance services whether operated as a primary business
or when incidental to other operations in an establishment not covered by an industry
order of the [IWC], and includes, but is not limited to the following: [¶] (1) Restaurants,
night clubs, taverns, bars, cocktail lounges, lunch counters, cafeterias, boarding houses,
clubs, and all similar establishments where food in either solid or liquid form is prepared
and served to be consumed on the premises." (Id., § 11050, subd. 2(P)(1), italics added.)

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provides: "Every employer shall authorize and permit all employees to take rest periods,
which insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest period
need not be authorized for employees whose total daily work time is less than three and
one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for
which there shall be no deduction from wages." (Italics added.)
The foregoing language of IWC Wage Order No. 5-2001 plainly provides that
employers "shall authorize and permit" a 10-minute rest break "per four (4) hours or
major fraction thereof," not a 10-minute rest break for every three and a half hours of
work, as plaintiffs contend. (Cal. Code Regs., tit. 8, § 11050, subd. 12(A).)
Furthermore, contrary to plaintiffs' assertion, the provisions of IWC Wage Order
No. 5-2001 do not require employers to authorize and permit a first rest break before the
first scheduled meal period. Rather, the applicable language of IWC Wage Order No. 5-
2001 states only that rest breaks "insofar as practicable shall be in the middle of each
work period." (Cal. Code Regs., tit. 8, § 11050, subd. 12(A), italics added.) IWC Wage
Order No. 5-2001, like section 226.7, is silent on the question of whether an employer
must permit an hourly employee to take a 10-minute rest break before the first meal
period is provided. As Brinker points out, an employee who takes a meal period one hour
into an eight-hour shift could still take a post-meal period rest break "in the middle" of
the first four-hour work period, in full compliance with the applicable provisions of IWC
Wage Order No. 5-2001.

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Brinker also asserts the court failed to address the issue of whether employers
must "force" employees to take rest breaks and, had it correctly ascertained that Brinker
was not responsible for requiring its employees to take rest breaks, "it necessarily would
have concluded that liability could only be established on an individual basis and that
plaintiffs' claims were not amenable to class treatment." In their return to the petition,
plaintiffs respond they never disputed that rest breaks can be waived, and thus the court
did not have to consider or decide that legal question.
Although plaintiffs acknowledge that employees can waive their right to take rest
breaks that their employers authorize and permit as required by law, the court's class
certification order is silent with respect to both the elements plaintiffs must prove to
establish their rest break claims, and the critical legal issue of whether employees may
waive their right to take such breaks. In basing its predominance finding on the
"common legal issue" of "what [Brinker] must do to comply with the Labor Code," the
court assumed it was not required to determine the elements of plaintiffs' rest break
claims before it certified the proposed class of Brinker's hourly employees. However, on
the alleged facts of this purported class action, the court's assumption was incorrect, thus
requiring reversal of the class certification order. (See Linder, supra, 23 Cal.4th at p.
436). Because the applicable provisions of IWC Wage Order No. 5-2001 provide only
that rest periods should be scheduled in the middle of each work period "insofar as
practicable," the propriety of permitting a rest break near the end of a typical four-hour
work period depends on whether the scheduling of such a rest break was practicable in a
given instance, and thus cannot be litigated on a class basis.

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Furthermore, because (as the parties acknowledge) Brinker's hourly employees
may waive their rest breaks, and thus Brinker is not obligated to ensure that its employees
take those breaks, any showing on a class basis that plaintiffs or other members of the
proposed class missed rest breaks or took shortened rest breaks would not necessarily
establish, without further individualized proof, that Brinker violated the provisions of
section 226.7, subdivision (a) and IWC Wage Order No. 5 as plaintiffs allege in their
complaint.
Plaintiffs' reliance on the 2001 DLSE opinion letter for the propositions that a rest
period is required before the first meal period and that Brinker's uniform rest break policy
violates IWC Wage Order No. 5, is misplaced. The 2001 DLSE opinion letter, which
interpreted IWC Wage Order No. 16-2001 governing rest periods for "persons employed
in the on-site occupations of construction, drilling, logging, and mining," stated that "[i]f
an employer regularly requires employees to work five hours prior to their 30[-]minute
lunch break" (italics added) as a general matter under IWC Wage Order No. 16-2001 "the
first rest period should come sometime before the meal break." Here, however, plaintiffs
do not contend that Brinker "regularly requires employees to work five hours prior to
their 30[-]minute lunch break." On the contrary, plaintiffs complain that Brinker
regularly engages in unlawful early lunching by requiring its employees to take their
meal periods soon after they arrive for their shifts, usually within the first hour.
Had the court properly determined that (1) employees need be afforded only one
10-minute rest break every four hours "or major fraction thereof" (Cal. Code Regs., tit. 8,
§ 11050, subd. 12(A)), (2) rest breaks need be afforded in the middle of that four-hour

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period only when "practicable," and (3) employers are not required to ensure that
employees take the rest breaks properly provided to them in accordance with the
provisions of IWC Wage Order No. 5, only individual questions would have remained,
and the court in the proper exercise of its legal discretion would have denied class
certification, with respect to plaintiffs' rest break claims because the trier of fact cannot
determine on a class-wide basis whether members of the proposed class of Brinker
employees missed rest breaks as a result of a supervisor's coercion or the employee's
uncoerced choice to waive such breaks and continue working.
For all of the foregoing reasons, we conclude that the class certification order rests
on improper criteria and incorrect assumptions with respect to the rest break claims, and
thus the court abused its discretion in finding that those claims are amenable to class
treatment. Accordingly, the portion of the class certification order certifying the rest
break subclass must be vacated. (Fireside Bank, supra, 40 Cal.4th at p. 1089.)
2. Meal Period Claims
Plaintiffs also assert two principal claims regarding missed or inadequate meal
periods. First, plaintiffs assert a rolling five-hour meal period claim, alleging Brinker's
uniform meal period policy violates sections 512 and 226.7, and IWC Wage Order No. 5,
by failing to provide or make available to Brinker's hourly employees a 30-minute
uninterrupted meal period for every five consecutive hours of work. Related to this claim
is plaintiffs' assertion that Brinker's "most egregious meal period violations" stem from
its practice of early lunching, under which Brinker allegedly requires its hourly
employees to take their meal periods soon after they arrive for their shifts, usually within

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the first hour, and then requires them to work in excess of five hours, and sometimes
more than nine hours straight, without an additional meal period.
Second, plaintiffs claim that employers have an affirmative duty under IWC Wage
Order No. 5 to ensure that hourly employees are relieved of all duty during meal periods,
and Brinker's uniform meal period policy violates sections 512 and 226.7, and IWC
Wage Order No. 5, by failing to ensure that its hourly employees "receive" or "take" their
meal periods.
We conclude the court (1) abused its discretion in concluding that plaintiffs'
rolling five-hour and early lunching meal period claims are amenable to class treatment;
and (2) incorrectly assumed that, in order to render an informed certification decision, it
did not have to resolve the issue of whether Brinker had a duty to ensure that its
employees take their meal periods.
a. Rolling five-hour meal period claim
Brinker contends the court's predominance analysis regarding both of plaintiffs'
meal period claims was "flawed" because it failed to determine the elements of those
claims before it granted plaintiffs' class certification motion, and if it had done so, the
court "could only have concluded that individual issues predominate."
While we agree with Brinker's argument as it relates to plaintiffs' claim that
Brinker was required to ensure that its hourly employees take meal periods, the record
shows the court did decide the legal issue of whether Brinker was required to provide a
rolling meal period for every five consecutive hours of work. Specifically, the record
shows that on July 1, 2005, the court issued a written tentative ruling on the issue of when

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an employer must provide a meal period under section 512 to an hourly employee.
Following the heading "THESE ARE ADVISORY OPINIONS ONLY," the court found
that, under that section, a meal period "must be given before [an] employee's work period
exceeds five hours." (Italics added.) The court also stated that "the DLSE wants
employers to provide employees with break periods and meal periods toward the middle
of an employee[']s work period in order to break up that employee's 'shift.'" (Italics
added.) The court further stated that Brinker "appears to be in violation of [section] 512
by not providing a 'meal period' per every five hours of work." (Italics added.) Two
weeks later, at an ex parte hearing, the court issued a minute order (the July 2005 order)
stating the "advisory ruling" was "confirmed by the court as an order." (Italics added.)
In November 2005 Brinker challenged the July 2005 order by filing its first
petition for writ of mandate. By order dated January 20, 2006, this court denied Brinker's
petition on the ground writ relief was not available to challenge an "advisory opinion."10
In the instant writ proceeding, Brinker now asserts that this court's "determination
that the trial court's July 2005 opinion was purely advisory destroys [p]laintiffs' argument
that the law applicable to their claims has already been decided." (Italics added.) We
reject this assertion. Upon further review, we conclude the trial court's July 2005 order
was not an advisory opinion; it was a final order determining that Brinker was statutorily
required to provide a meal period for every five consecutive hours of work. Brinker
10 This court's order denying Brinker's first writ petition stated in part: "The review
of an advisory opinion would result in an advisory opinion. California courts generally
have no power to render an advisory opinion. [Citation.] The petition is denied."

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29
implicitly acknowledged in its first writ petition that the court's ruling was not "purely
advisory," stating: "On July 1, 2005, the Trial Court issued a preliminary opinion finding
against Brinker . . . . The Trial Court held that a meal period must be provided for each
five-hour block of time worked by a non-exempt employee . . . . The Trial Court
converted its opinion to a final order . . . on July 15, 2005 . . . ." (Italics added, fn.
omitted.) In its reply to the plaintiffs' return in the instant writ proceeding, Brinker again
acknowledges that "the trial court 'confirmed' its 'advisory opinions' . . . ." (Italics added.)
We conclude that the court's rolling five-hour meal period ruling in its July 2005
order was erroneous, and thus the class certification order rests on improper criteria with
respect to the plaintiffs' rolling five-hour meal period claim and cannot stand to the extent
it was based on that ruling. (See Fireside Bank, supra, 40 Cal.4th at p. 1089.) The
question of when an employer must provide a meal period to its hourly employees is both
a question of law governed by section 512, subdivision (a) (hereafter section 512(a)) and
IWC Wage Order No. 5, and an issue of statutory interpretation governed by well-
established principles. "The objective of statutory construction is to determine the intent
of the enacting body so that the law may receive the interpretation that best effectuates
that intent. [Citation.] 'We first examine the words themselves because the statutory
language is generally the most reliable indicator of legislative intent. [Citation.] The
words of the statute should be given their ordinary and usual meaning and should be
construed in their statutory context.' [Citation.] If the plain, commonsense meaning of a
statute's words is unambiguous, the plain meaning controls. [Citation.]" (Fitch v. Select
Products Co. (2005) 36 Cal.4th 812, 818, italics added.) The interpretation of a statute

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presents a question of law subject to de novo appellate review. (CBS Broadcasting, Inc.
v. Superior Court (2001) 91 Cal.App.4th 892, 906.)
Section 512(a), which governs an employer's obligations with respect to the
"providing" of meal periods to its hourly employees, provides:
"An employer may not employ an employee for a work period of
more than five hours per day without providing the employee with a
meal period of not less than 30 minutes, except that if the total work
period per day of the employee is no more than six hours, the meal
period may be waived by mutual consent of both the employer and
employee. An employer may not employ an employee for a work
period of more than 10 hours per day without providing the
employee with a second meal period of not less than 30 minutes,
except that if the total hours worked is no more than 12 hours, the
second meal period may be waived by mutual consent of the
employer and the employee only if the first meal period was not
waived." (Italics added.)
The term "employ" is defined in IWC Wage Order No. 5-2001 to mean "to
engage, suffer, or permit to work." (Cal. Code Regs., tit. 8, § 11050, subd. 2(E).) The
term "provide" is defined in Merriam-Webster's Collegiate Dictionary (11th ed. 2006) at
page 1001 as "to supply or make available." (Italics added.)
Section 512(a) thus plainly provides that an employer in California has a statutory
duty to make a first 30-minute meal period available to an hourly employee who is
permitted to work more than five hours per day, unless (1) the employee is permitted to
work a "total work period per day" that is six hours or less, and (2) both the employee
and the employer agree by "mutual consent" to waive the meal period.
This interpretation of section 512(a), regarding an employer's duty to provide a
first meal period, is consistent with the plain language set forth in IWC Wage Order No.

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5-2001, which provides in part: "No employer shall employ any person for a work period
of more than five (5) hours without a meal period of not less than 30 minutes, except that
when a work period of not more than six (6) hours will complete the day's work the meal
period may be waived by mutual consent of the employer and the employee." (Cal. Code
Regs., tit. 8, § 11050, subd. 11(A), italics added.) Although that subdivision of the wage
order refers to "work period of more than five (5) hours" rather than to "work period of
more than five (5) hours per day," the Legislature used the term "work period of more
than five hours per day" (italics added) in section 512(a), and we presume the Legislature
intended the provisions of IWC Wage Order No. 5-2001 and section 512(a) to be given a
consistent interpretation.
With respect to the issue of when an employer must make a first 30-minute meal
period available to an hourly employee, Brinker's uniform meal period policy (titled
"Break and Meal Period Policy for Employees in the State of California") comports with
the foregoing interpretation of section 512(a) and IWC Wage Order No. 5-2001. It
provides that employees are "entitled to a 30-minute meal period" when they "work a
shift that is over five hours."
Section 512(a) also plainly provides that an employer in California has a statutory
duty to make a second 30-minute meal period available to an hourly employee who is
permitted to work a "work period of more than 10 hours per day" (italics added) unless
(1) the "total hours" the employee is permitted to work per day is 12 hours or less, (2)
both the employee and the employer agree by "mutual consent" to waive the second meal
period, and (3) the first meal period "was not waived."

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Plaintiffs contend, and the trial court implicitly ruled in its July 2005 order, that
Brinker's written meal policy violates section 512(a) and IWC Wage Order No. 5
(specifically, Cal. Code Regs., tit. 8, § 11050, subd. 11(A)) because it allows the practice
of early lunching (discussed, ante) and fails to make a 30-minute meal period available to
an hourly employee for every five consecutive hours of work. Plaintiffs implicitly
contend, without any analysis of section 512(a) or IWC Wage Order No. 5-2001, that
hourly employees are entitled to a second meal period five hours after they return to work
from the first meal period.
Plaintiffs' contentions are unavailing, and the court's ruling was erroneous. Under
plaintiffs' and the court's interpretation of section 512(a), an employer, in determining
whether one of its hourly employees is entitled to a second meal period, would never
have to consider whether it has permitted the employee to work for a "work period of
more than 10 hours per day" (§ 512(a)), because it would simply reset the clock upon the
employee's return from a meal period. This interpretation of section 512(a) effectively
ignores and renders surplusage about half of the governing language set forth in that
subdivision, as shown by the strikethroughs in the following excerpt: "An employer may
not employ an employee for a work period of more than five hours without providing the
employee with a meal period of not less than 30 minutes . . . . Under this interpretation,
the term "per day" in the first sentence of section 512(a) would be rendered surplusage, as
would the phrase "An employer may not employ an employee for a work period of more
than 10 hours per day without providing the employee with a second meal period of not
less than 30 minutes" in the second sentence of that subdivision.

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"It is a well established principle of statutory construction that '[t]he courts
presume that every word, phrase, and provision of a statute was intended to have some
meaning and perform some useful function . . . .' [Citation.]" (Twain Harte Homeowners
Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 698-699.) "Interpretations that
lead to absurd results or render words surplusage are to be avoided. [Citation.]" (Woods
v. Young (1991) 53 Cal.3d 315, 323 (Woods).)
Here, the interpretation of section 512(a) given by plaintiffs and the court is
erroneous as a matter of law, and thus must be avoided because it renders surplusage the
provisions of that subdivision governing the question of when an employer must provide
meal periods to an hourly employee. (See Woods, supra, 53 Cal.3d at p. 323.)
Citing California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25
Cal.3d 200, the court stated in its order that "[t]he California Supreme Court has
interpreted wage orders to require a meal period for each five-hour period an employee
works," and "[a] meal period of [30] minutes per five hours of work is generally
required." That case, however, is distinguishable as it involved an IWC wage order (No.
5-76) that is not involved in the present case. (California Hotel & Motel Assn., supra, 25
Cal.3d at p. 205, fn. 7.) As summarized by the Court of Appeal, the pertinent provision
of that wage order provided that "[a] meal period of 30 minutes per 5 hours of work is
generally required." (Ibid., italics added.) As already discussed, however, section
512(a), which governs here, provides in part: "An employer may not employ an
employee for a work period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes." (Italics added.) The

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distinction between the two provisions is of critical importance. Whereas IWC wage
order No. 5-76 generally required a meal period for every "5 hours of work," section
512(a) generally requires a first meal period for every "work period of more than five
hours per day" (italics added). The court thus erred by relying on California Hotel &
Motel Assn., supra, 25 Cal.3d 200.
We conclude the court abused its discretion in certifying the class in this matter to
the extent it relied on an erroneous interpretation of section 512(a). As already discussed,
a class certification order based upon improper criteria or incorrect assumptions must be
reversed, even though there may be substantial evidence to support it. (Linder, supra, 23
Cal.4th at p. 436.) Here, the court's order certifying the meal period subclass class was
based upon both improper criteria regarding the elements of the rolling five-hour meal
period claim and an incorrect assumption about when an employer must provide a meal
period under the provisions of section 512(a). Without a proper interpretation of section
512(a), the court could not correctly ascertain the legal elements that members of the
proposed class would have to prove in order to establish their meal period claims, and
thus could not properly determine whether common issues predominate over issues that
affect individual members of the class.
b. Claim of failure to ensure employees take meal periods
Plaintiffs also claim that Brinker's uniform meal period policy violates sections
512 and 226.7, as well as IWC Wage Order No. 5, by failing to ensure that its hourly
employees take their meal periods. In challenging the court's class certification order,
Brinker's writ petition presents a question of first impression: Does an employer have an

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affirmative duty under section 512(a) and IWC Wage Order No. 5-2001 to not only
provide uninterrupted 30-minute meal periods to its hourly employees as mandated
therein, but also to ensure the employees actually take the meal periods?11
For reasons we shall explain, we conclude that the court abused its discretion by
granting plaintiffs' class certification motion without first resolving this issue and
determining the elements of this meal period claim, and thus the certification order must
be vacated and the matter remanded with directions to the court to decide this issue.
As a preliminary matter, plaintiffs contend the court's July 2005 order decided the
"central legal question" in Brinker's current writ petition of "whether meal periods must
be 'ensured' or merely 'made available.'" We reject this contention.
The record shows that the July 2005 order was based on briefing submitted by the
parties, pursuant to a written stipulation, on the issue of "whether [Brinker] was required
to provide a meal period for each five-hour block of time worked by an hourly
employee." This statement of the issue followed the stipulation subheading: "When
Must A Meal Period Be Provided?"
11 Amici curiae Employers Group, California Restaurant Association, National
Council of Chain Restaurants, National Retail Federation, California Hospital
Association, and The California Retailers Association frame the issue as follows:
"Whether California's Labor Code imposes on employers a duty to not only provide
uninterrupted meal periods, but to further force employees to take their meal periods and
to police their compliance─regardless of the reason proffered by the employee for not
wanting a meal period and even against the employee's will." Amici curiae California
Employment Law Council and National Association of Theatre Owners of
California/Nevada, Inc. raise a similar issue: "[W]hether employers must force their
employees to take meal . . . breaks or whether they must simply provide the opportunity
for such breaks."

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In their written opposition to Brinker's brief, plaintiffs did raise the issue of
whether employers must ensure that employees take meal periods. Specifically, citing
the 2001 DLSE opinion letter (discussed ante), plaintiffs asserted that while rest periods
"need only be 'authorized and permitted,' . . . the employer must 'ensure' that the
employee takes meal periods." (Italics added.)
In its written tentative ruling, which it later confirmed as the July 2005 order, the
court ruled on the meal period issue that was the subject of the parties' stipulation. As
already discussed, the court determined that, under section 512, a meal period "must be
given before [an] employee's work period exceeds five hours," and stated that "[Brinker]
appears to be in violation of [section] 512 by not providing a 'meal period' per every five
hours of work." (Italics added.)
Although the court also stated that the "spirit of [section] 512" is to "protect
employees and ensure they have a [30]-minute meal break every five hours of work"
(italics added), the court did not rule that employers must ensure that employees take the
meal periods provided to them and, even if it had, such ruling would have been outside
the scope of the legal issue the parties stipulated to present to the court for its
determination. As already discussed, the parties by stipulation asked the court to decide
whether Brinker was required to provide a meal period for each five-hour block of time
worked by an hourly employee.
That the court did not decide the issue of whether an employer in California has a
duty under section 512(a) and IWC Wage Order No. 5 to ensure that its hourly employees
actually take the meal periods provided to them is further demonstrated by the court's

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remarks during an October 13, 2006 post-class certification hearing held in this case after
Brinker filed the writ petition at issue in this writ proceeding. At that hearing, plaintiffs'
counsel informed the court that the parties had retained statisticians, and Brinker's
counsel expressed concern that the experts, in order to form their opinions, "need[ed] to
know what theory of liability is going to apply; for example, with the meal and rest
periods, is the theory of liability that [Brinker's] obligation was just to provide the
opportunity or to ensure that it happened. [T]heir answers and analysis will be different
depending on which . . . theory of liability applies." (Italics added.)
Acknowledging that hourly employees can waive rest periods, plaintiffs' counsel
cited Cicairos v. Summit Logistics, Inc., supra, 133 Cal.App.4th 949, for the proposition
that employers must "ensure" their employees "receive" or "get" an uninterrupted 30-
minute meal period. Brinker's counsel responded that the issue of whether employers
must "ensure" their employees receive the meal periods was not before the court when it
issued its July 2005 order.
Acknowledging it needed to be "clearer" regarding the "basis of liabilities," the
court initially suggested that meal periods need to be "ensured," stating: "[T]he ruling
that . . . meal periods need to be given every five hours is akin to saying that it needs to
be ensured because if it's only needed to be provided, then there certainly wouldn't have
been enough before the court to figure out if they were asked and refused or what. And
so I think that's an assumption that can be made from the orders that are outstanding."
(Italics added.)

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The court, however, then immediately retreated from that suggestion, stating:
"But frankly the question of the break periods [is] going to require the opposite
assumptions; that is, that because plaintiffs aren't even contending that it's a requirement
to ensure─that it's merely to provide─that that will require the opposite conclusion."
Stating "I don't think it makes any difference whether they are talking about meal periods
or rest periods," the court directed the parties' expert witnesses to make "both
assumptions:" "So it seems to me that both sides, frankly, need to have their experts
make both assumptions, and I'm not sure it needs to be connected with one or the other[,]
rest period or meal period." (Italics added.)
The court then directed the parties to submit briefing on their theories of liability,
stating: "All right. I think the only way to proceed is this. If what we do is plaintiff[s] in
their methodology opening brief set[] out the theories of liability that they intend to
pursue at trial . . . and then their proposed methodology to prove those theories of
liability. [¶] Then the defense can respond by saying both things. That these are the
improper theories as well as -- but assuming they are, here is what our experts are saying
is the proper methodology. And then if instead the theory of liability is 'X,' the
methodology should be 'Y.' I don't know of any other way to proceed." (Italics added.)
The court also told counsel, "I do think you need to set out . . . what theories you intend
to pursue; in other words, that it is the requirement to ensure a lunch meal period, to only
provide rest period, and then what methodology your experts are saying are needed to
prove those theories in your opening briefs."

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Based upon the language set forth in the July 2005 order and the foregoing
excerpts from the October 2006 post-certification hearing, we conclude that although the
July 2005 order decided the issue of when an employer must provide a meal period under
section 512(a), the court did not determine whether an employer in California has a duty
under section 512(a) and IWC Wage Order No. 5 to ensure that its hourly employees
actually take the meal periods the employer provides.
As already discussed, the critical inquiry on a class certification motion is whether
the theory of recovery advanced by the certification proponents is likely to prove
amenable to class treatment (Sav-On, supra, 34 Cal.4th at p. 326), and in order to
determine whether common questions of law or fact predominate, the trial court must
examine the issues framed by the pleadings and the law applicable to the alleged causes
of action (Hicks, supra, 89 Cal.App.4th at p. 916).
Here, however, the court failed to examine a key issue framed by the pleadings,
the parties' briefing, and the law applicable to the alleged causes of action; and it
incorrectly assumed it could grant plaintiffs' class certification motion without deciding
whether an employer has a duty under section 512(a) and IWC Wage Order No. 5 to
ensure that its hourly employees actually take the meal periods provided. Without
deciding this issue, the court could not adequately evaluate whether common questions
regarding plaintiffs' meal period claim predominate over individual issues.
In White v. Starbucks Corp. (N.D.Cal. July 2, 2007) 497 F.Supp.2d 1080
(Starbucks), the United States District Court for the Northern District of California
recently concluded that, under sections 512(a) and 226.7, "the California Supreme

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Court . . . would require only that an employer offer meal breaks, without forcing
employers actively to ensure that workers are taking these breaks," and stated that "the
employee must show that he was forced to forego his meal breaks as opposed to merely
showing that he did not take them regardless of the reason."12 (Starbucks, supra, 497
F.Supp.2d at pp. 1088-1089.)
Here, a decision by the court on the issue of whether Brinker has a duty under
section 512(a) and IWC Wage Order No. 5 to ensure that its hourly employees actually
take meal periods would affect the court's predominance analysis. For example, should it
determine that an employer has no such duty, the court would have to decide, in
performing its predominance analysis, whether common issues would be substantially
outweighed by the individual inquiries that would be required at trial to determine
whether each alleged instance of a missed or shortened meal period was the result of an
employee's personal choice or a manager's coercion.
We thus conclude that the class certification order rests on an incorrect assumption
with respect to plaintiffs' meal period claims to the extent those claims are based on
plaintiffs' theory of liability that Brinker had a duty to ensure that its hourly employees
took the meal periods it provided to them, and thus the court abused its discretion in
finding that these claims are amenable to class treatment. Accordingly, the portion of the
12 Starbucks involved IWC Wage Order No. 7-2001 (Cal. Code Regs., tit. 8,
§ 11070), the pertinent meal period provisions of which are virtually identical to those set
forth in IWC Wage Order No. 5-2001, which is at issue here. (See Starbucks, supra, 497
F.Supp.2d at pp. 1085, 1087-1088; compare Cal. Code Regs., tit. 8, § 11070, subds.
11(A), (C) with Cal. Code Regs., tit. 8, § 11050, subd. 11(A).)

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class certification order implicitly certifying the meal period subclass based on this theory
of liability must be vacated. (See Fireside Bank, supra, 40 Cal.4th at p. 1089.) The court
is directed to decide on remand whether Brinker had a duty under section 512(a) and
IWC Wage Order No. 5 to ensure that its hourly employees actually took the meal
periods provided to them.
3. Off-The-Clock Claims
In their third category of claims, plaintiffs allege Brinker unlawfully required its
employees to work off-the-clock during meal periods. In a related claim, plaintiffs have
also asserted a time shaving claim, alleging Brinker has engaged in a practice of "shaving
time from employee payroll records to reflect less than a five (5) hour shift."
With respect to this claim, Brinker argued in opposition to plaintiffs' class
certification motion that plaintiffs' off-the-clock claim should not be certified as a class
action claim because plaintiffs had not cited any Brinker policy to alter time records or
permit off-the-clock work, Brinker in fact had a policy expressly prohibiting such work;
and plaintiffs had no proof of "class-wide off-the-clock work." Citing Morillion v. Royal
Packing Co., supra, 22 Cal.4th 575 for the proposition that no employer liability exists
when employees work off-the-clock if the work occurs without their managers'
knowledge, Brinker also argued that even if off-the-clock work occurred, it could not be
held liable unless it "suffered or permitted the work," and thus any off-the-clock work
would have to be individually proven.
In this writ proceeding, Brinker argues the court erred by certifying plaintiffs' off-
the-clock claims for class treatment "without identifying any common questions or

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common proof with respect to those claims or, for that matter, even mentioning them."
Brinker again relies on Morillion v. Royal Packing Co., supra, 22 Cal.4th 575, for the
proposition that the resolution of plaintiffs' off the clock claims would require individual
inquiries into whether a given employee actually performed off-the-clock work, and
whether the employee's manager had actual or constructive knowledge of such work.
Citing the declarations of two class members (Jerry Gallon and Will Gordon) who stated
that they often performed job duties while clocked out for meal periods or for the day,
Brinker argues the declarations failed to indicate whether these employees were required
to work "off the clock" or did so by their own choice, and failed to indicate whether their
supervisors knew they were performing off the clock work in violation of Brinker policy.
Had the court examined the elements of plaintiffs' "off the clock" claims, Brinker asserts,
the court "never could have certified them."
The class certification order is devoid of any indication that the court examined
the elements that members of the proposed class would have to prove to prevail on their
off the clock claims. The court was required to perform such an examination before
certifying these claims for class treatment. (Hicks, supra, 89 Cal.App.4th at p. 916.) The
only common issue that the court cited in its order was the overly broad issue of "what
[Brinker] must do to comply with the Labor Code," and the court failed to even mention
plaintiffs' off the clock claims.
We conclude the court incorrectly assumed it did not have to examine the
elements of plaintiffs' off-the-clock claims and abused its discretion by finding without
such an examination that those claims are amenable to class treatment. Accordingly, the

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portion of the class certification order implicitly certifying the off-the-clock subclass
must be vacated (see Fireside Bank, supra, 40 Cal.4th at p. 1089), and the court is
directed to examine and consider on remand the elements of plaintiffs' off the clock
claims.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its
July 6, 2006 class certification order, enter a new order denying with prejudice
certification of the proposed rest break subclass, and denying without prejudice
certification of the proposed meal period and off the clock subclasses. The matter is
remanded with directions that the court examine and consider the elements of plaintiffs'
meal period and off the clock claims, including the issue of whether Brinker had a duty
under section 512(a) and IWC Wage Order No. 5 to ensure that its hourly employees
actually took the meal periods it provided to them.
The stay issued on December 7, 2006, is vacated. Brinker is entitled to its own
costs in this writ proceeding. This opinion is made final immediately as to this court.
(Cal. Rules of Court, rule 8.264(b)(3).)
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.

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