Santos v. Vitas Healthcare

Filed 7/14/11 Santos v. Vitas Healthcare CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
BERNADETTE SANTOS et al.,
Plaintiffs and Appellants,
v.
VITAS HEALTHCARE CORPORATION
OF CALIFORNIA et al.,
Defendants and Respondents.
B222645
(Los Angeles County
Super. Ct. No. BC359356)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Emilie H. Elias, Judge. Affirmed in part and reversed in part.
Arias Ozzello & Gignac, Mike Arias, Mikael H. Stahle and Mark A. Ozzello, for
Plaintiffs and Appellants.
Curiale Hirschfeld Kraemer, Reed E. Schaper and Robert R. Flemer, for
Defendants and Respondents.
__________________________

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Plaintiffs Bernadette Santos, Joyce White, Keith Knoche, and Jerry Shirley, for
themselves individually and as proposed class representatives, appeal from the trial
court‘s denial of their motion for class certification. We affirm in part and reverse in
part.
FACTS AND PROCEEDINGS
Respondent VITAS Healthcare Corporation of California provides end-of-life
hospice care and bereavement services to terminally ill patients in patients‘ homes and
nursing facilities. (VITAS is a subsidiary of respondent Chemed Corporation, but
Chemed Corporation‘s conduct is not at issue in this appeal.) VITAS employs teams of
admission nurses, chaplains, and sales representatives to deliver its care to patients.
Appellant Bernadette Santos worked for VITAS as an admissions nurse, appellants Keith
Knoche and Jerry Shirley were chaplains, and appellant Joyce White was a sales
representative.
In 2006, appellants filed their original complaint (later superseded by their
operative third amended complaint) for themselves and as proposed class representatives
for all other similarly situated VITAS employees. (Code Civ. Proc., § 382 [permits class
actions].) Their complaint alleged causes of action against VITAS for not paying class
members their earned wages and overtime, failing to provide them with meal breaks and
rest periods, and engaging in unfair competition. Their complaint claimed the following:
● VITAS required every team member to check the company‘s voice mail system
every day before leaving home for work to receive updated reports about the
patients that team members were scheduled to visit that day. Appellants assert the
voice mail messages were lengthy, lasting from 30 to 60 minutes. According to
appellants, VITAS did not pay team members for their time listening to the
messages.

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● VITAS maintained a telephonically-controlled computerized database known as
VRU (Voice Response Unit). According to appellants, VITAS required team
members to call into VRU from a land line telephone (not a cell phone) after work
each day to input into the system their billing and activity codes for that day‘s
patient visits. Appellants allege inputting each day‘s codes involved substantial
time for which VITAS did not pay team members.
● VITAS did not pay team members for their ―inordinate‖ travel time at the
beginning of the day from home to their first patient visits, and for their travel time
returning home after their last patient visits of the day.
● Appellants allege VITAS told team members to take meal breaks while driving
from one patient visit to the next, thereby depriving team members of the 30-
minute, uninterrupted meal break to which the law entitled them.
Appellants‘ complaint sought recovery of unpaid wages, overtime, and statutory
wage penalties for all VITAS admissions nurses, chaplains, and sales representatives.
Appellants thereafter moved for certification of the following classes:
―Subclass I: (Straight/Overtime) All persons who were employed by Defendants
in California as Admission Nurses (from April 4, 2000), Chaplains, and Sales
Representatives (from September 27, 2002), to the present, who were not properly
compensated for all time worked in any given workday and/or any given
workweek.‖
―Subclass II: (Meal Breaks) All persons who were employed by Defendants in
California as Admission Nurses (from April 4, 2000 to the present), Chaplains,
and Sales Representatives (from September 27, 2002 to the present), who did not

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receive meal periods pursuant to the applicable Cal. Lab. Code and Industrial
Welfare Commission Wage Order Requirements.‖
―Subclass III: (Rest Breaks) All persons who were employed by Defendants in
California as Admission Nurses (from April 4, 2000 to the present), Chaplains,
and Sales Representatives (from September 27, 2002 to the present), who did not
receive rest periods pursuant to the applicable Cal. Lab. Code and Industrial
Welfare Commission Wage Order Requirements.‖
After the hearing, the court issued a 13-page order denying the motion for class
certification on multiple grounds. This appeal followed.
STANDARD OF REVIEW
―A motion to certify a class action is not a trial on the merits, nor does it function
as a motion for summary judgment.‖ (Carabini v. Superior Court (1994) 26 Cal.App.4th
239, 245.) Class certification ― ‗is essentially a procedural [question] that does not ask
whether an action is legally or factually meritorious.‘ ‖ (Sav-On Drug Stores, Inc. v.
Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On).) ― ‗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.]‘ ‖ (Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th
1286, 1298 (Jaimez).) To the extent a trial court may consider a proposed class action‘s
substance or merits, it may do so to determine whether factual or legal questions common
to all class members are likely to play a predominant role in driving the litigation, thus
making the action amenable to class treatment. ―As the focus in a certification dispute is
on what type of questions—common or individual—are likely to arise in the action,
rather than on the merits of the case [], in determining whether there is substantial
evidence to support a trial court‘s certification order, [the reviewing court] consider[s]

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whether the theory of recovery advanced by the proponents of certification is, as an
analytical matter, likely to prove amenable to class treatment.‘ [Citation.]‖ (Ghazaryan
v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1531; Bomersheim v. Los Angeles
Gay and Lesbian Center (2010) 184 Cal.App.4th 1471, 1481 [―Questions of fact and law
are ‗predominant‘ if the factual and legal issues ‗common to the class as a whole [are]
sufficient in importance so that their adjudication on a class basis will benefit both the
litigants and the court.‘ ‖].) In determining amenability, courts may look to the complaint
and declarations of counsel. (Sav-On, supra, at p. 327.)
We review the trial court‘s resolution of the foregoing certification questions for
abuse of discretion. ―Because trial courts are ideally situated to evaluate the efficiencies
and practicalities of permitting group action, they are afforded great discretion in granting
or denying certification. . . . [Accordingly,] a trial court ruling supported by substantial
evidence generally will not be disturbed ―unless (1) improper criteria were used
[citation]; or (2) erroneous legal assumptions were made [citation]‖ [citation] . . . .‘
[Citations.]‖ (Sav-On, supra, 34 Cal.4th at pp 326-327, quoting Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 435-436.) However, ―[w]e do not apply this deferential standard
of review if the trial court has evaluated class certification using improper criteria or an
incorrect legal analysis. . . . [Citations.] . . . The reviewing court ‗must examine the trial
court‘s reasons for denying class certification.‘ [Citation.] When reviewing an order
denying class certification, appellate courts ‗consider only the reasons cited by the trial
court for the denial, and ignore other reasons that might support denial.‘ [Citation.]‖
(Jaimez, supra, 181 Cal.App.4th at pp. 1297-1298.)
DISCUSSION
A. Uncompensated Travel Time
VITAS did not pay team members for their travel time from home to their first
patient visits at the beginning of the workday, nor for their commute home after the last

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patient visit of the day. The VITAS representative most knowledgeable about VITAS‘
compensation policies testified in her deposition as follows:
―Q. [D]o [proposed class members] get paid for the time that they spend driving
to their first appointment? A. No. Q. Do they get paid for the time that they
spend driving from their last appointment? A. No. Q. Is that a policy that
applies to all [proposed class members] in California? A. To the best of my
knowledge, yes.‖
Appellants sought class certification for VITAS employees who were not paid for
their travel time. The court denied certification because it found VITAS had no legal
obligation to pay for the travel time of employees who did not have a customary
workplace to which they commuted each day. In support, the court relied on an advice
letter from the Department of Labor Standards Enforcement (DLSE). The DLSE letter
opined the law did not require an employer to compensate employees for commuting
time when the employees ―are not assigned to a specific workplace and [thus] have a
reasonable expectation that they will be routinely required to travel reasonable distances
to job sites on a daily basis.‖
Appellants contend the court erred in denying certification because the court
examined the merits of whether proposed class members had a customary workplace.
Additionally, appellants complain, the court disregarded the substantial evidence that
they had a customary workplace because they attended weekly team meetings in
VITAS‘s company offices.
Appellants‘ contentions are unavailing. The trial court may consider the legal
merits of a proposed class‘s claims when those merits intertwine with the proposed
class‘s viability. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1092, citing
Linder v Thrifty Oil Co., supra, 23 Cal.4th at p. 443.) ―In order to determine whether
common questions of 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
& Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) Here, the trial court‘s

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consideration of appellants‘ evidence of a workplace to which they customarily reported
went to the existence of a common question of law or fact necessary for determining the
suitability of class treatment of appellants‘ claims; without a customary workplace, class
members were not entitled to compensation for their travel time. We agree with the trial
court‘s conclusion that, at least under the guidelines and examples discussed by the
DLSE in its letter, weekly meetings at company offices is not substantial evidence that
class members were ―assigned to a specific workplace.‖ (Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575, 584 (Morillion) [recognizing as ―persuasive‖ statements
concerning labor law contained in DLSE advice letters]; Marin v. Costco Wholesale
Corp. (2008) 169 Cal.App.4th 804, 815 [DLSE advice letters may ―provide guidance in
similar subsequent cases‖]; Koehl v. Verio, Inc. (2006) 142 Cal.App.4th 1313, 1334
[noting Morillion’s consideration of DLSE advice letters in stating such letters ―while not
controlling upon the courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants may properly resort for
guidance.‖].) Thus, the DLSE letter provides no support for appellants‘ position.
Under Morillion, supra, 22 Cal.4th 575, appellants were not under VITAS‘s
―control‖ during their commutes in a manner that would have entitled them to travel-time
compensation. Morillion held that farm workers were entitled to pay for the time they
rode their employer‘s bus from a central departure point to a field to begin work. Central
to Morillion’s holding was the fact that the workers were under the employer‘s physical
control because the employer required the workers to take the bus. (Id. at pp. 582, 586-
588.) Relevant, here, however, was Morillion’s pronouncement that ―while the time [the
farm workers] spent traveling on [the employer‘s] buses to and from the fields is
compensable as ‗hours worked‘ . . . , the time [the workers] spent commuting from home
to the departure points and back again is not‖ because the workers were not under the
employer‘s control during their commutes. (Id. at pp. 587-588; accord 29 U.S.C. § 251 et
seq (Portal-to-Portal Act) [§ 254, subd. (a); travel time to work place not ordinarily
compensable under federal labor law].) Likewise here, VITAS did not control the
manner or circumstances of the commutes by class members to their first patient visits or

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home. For this reason, and because class members had no specific workplace, the trial
court did not abuse its discretion in denying certification of claims for uncompensated
travel time.
B. Uncompensated Straight-Time and Overtime
1. As applied to team members‘ three job categories
Appellants sought class certification for ―all employees who were not properly
compensated for all time worked in any given workday and/or any given week.‖ These
employees‘ claims rested on uncompensated time spent checking voicemail messages
before the start of each work day and inputting activities reports into the VRU system
after work.1 The court denied certification of claims for uncompensated work time
because appellants submitted no evidence that VITAS refused to pay employees for work
time that the employees reported. The court explained, ―there is no evidence here of a
common practice to not pay for time spent retrieving voicemails and inputting data.
Indeed, the evidence seems to be to the contrary. Plaintiffs fail to cite even one instance
where an employee reported overtime work and was not paid for it. Vitas, on the other
hand, attaches management declarations and deposition testimony stating that ‗[a]ll
reported overtime is paid . . . .‖ The court found that appellants‘ ―declarations establish,
at most, that the declarants were unable to complete all of their tasks during the normal
eight hour workday and subjectively felt uncomfortable about reporting all overtime
hours worked. Because of their subjective nature, the declarations fail to show a common
policy and give rise to individual questions.‖ Because appellants, in the court‘s
estimation, failed to show a predominance of common questions of law or fact, the court
denied certification. (Sav-On, 34 Cal.4th at p. 326 [class certification requires a
―community of interest‖ which involves, among other things, predominant common
1 Appellants included travel time within their claim for uncompensated straight-time
and overtime, but we have found, supra, that the trial court correctly denied certification
of that portion of their claim.

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questions of law or fact].) We find the court erred because it misapprehended appellants‘
wage claims.
To promote the welfare of workers and the public, society imposes hour and wage
laws on employers. (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1430;
Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 29; California
Grape and Tree Fruit League v. Industrial Welfare Commission (1969) 268 Cal.App.2d
692, 703.) An employer is liable for overtime if it ― ‗knows or has reason to believe that
[the employee] is continuing to work. . . . In all such cases it is the duty of the
management to exercise its control and see that the work is not performed if it does not
want it to be performed.‘ ‖ (Morillion, supra, 22 Cal.4th at p. 585.)2 An employer may
not shirk that duty. (See Lab. Code, § 1199 [misdemeanor to pay less than legally
mandated overtime wage]; Gould v. Maryland Sound Industries, Inc. (1995)
31 Cal.App.4th 1137, 1148-1149.) To ensure employees receive their overtime pay,
employers must keep accurate payroll records. (Lab. Code, § 1174, subd. (d) [employer‘s
duty to keep payroll records; Lab. Code, § 1175, subd. (d) [misdemeanor for employer
not to keep payroll records].) An employer may not delegate to employees the duty to
keep accurate payroll records, nor may the employer turn a blind eye to its employees‘
accrual of overtime by shifting to employees the duty to claim overtime when the
employer knows, or has reason to know, the employees are working overtime. (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1189 [may not shift record keeping
burden to employees]; accord Lab. Code, § 1194, subd. (a) [―Notwithstanding any
agreement to work for a lesser wage, any employee receiving less than . . . legal overtime
2 VITAS cites Lindow v. United States (1984) 738 F.2d 1057, 1060 for the
proposition that an employer must actually know the employee has worked overtime, but
VITAS misreads Lindow. Disavowing older authority that had required ―actual‖
knowledge, the Lindow court stated ― ‗we have more recently held that ―an employer who
knows or should have known that an employee is or was working overtime‘ is obligated
to pay overtime. [Citation.] An employer who is armed with this knowledge cannot
stand idly by and allow an employee to perform overtime work without proper
compensation, even if the employee does not make a claim for the overtime
compensation.‖ [Citation.]‘ ‖ (Id. at pp. 1060-1061.)

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compensation . . . is entitled to recover in a civil action the unpaid balance of the full
amount of . . . overtime compensation . . . .‖].)
Here, appellants claim VITAS‘s policies required class members to retrieve
voicemail messages and input activity data ―off the clock‖ without pay, resulting in
uncompensated overtime. According to appellants, VITAS directed class members to
check their voicemail before beginning work each day to receive updates about the health
and condition of patients the class members were scheduled to visit that day. Appellants
submitted more than a half-dozen declarations by appellants and other proposed class
members attesting to the retrieval of these voice mails taking a minimum of 30 minutes
each day, time for which they were not compensated.3 Appellants also alleged VITAS
policy virtually compelled class members to input their daily activity data into the
company‘s VRU (Voice Response Unit) on their own time from their home telephones.4
The VITAS representative most knowledgeable about the company‘s compensation
policies testified as follows:
3 The following VITAS employees submitted declarations attesting to the
uncompensated time they spent listening to voicemails each morning: admissions nurse
Janine Cantrell – at least 45 minutes; admissions nurse Arden Daniels – 45 to 60 minutes
on average; Chaplain Jerrold Hollobaugh – at least 30 minutes; Chaplain Keith Knoche –
at least 30 minutes; admissions nurse Terri McKibbon – up to one hour at the beginning
of each work week on Mondays and about 45 minutes the other days of the week;
appellant Bernadette Santos – up to one hour on Mondays and about 45 minutes the other
days of the week; appellant Jerry Shirley – at least 30 minutes; Chaplain Patricia
Williams – at least 30 minutes. VITAS correctly notes that the court excluded from
evidence those portions of class members‘ declaration that discussed the experience of
co-workers or what the declarant supposed VITAS‘s policies to be. But the declaration
testimony cited at the beginning of this footnote does not suffer from those infirmities
because the stated facts reflected each declarant‘s personal knowledge, and thus the court
did not exclude the statements.
4 Starting in 2005, VITAS began to replace VRU with CarePlanIT, but the parties
offer no argument that the switchover affected appellants‘ claims.

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―Q. It‘s true, is it not, that field workers are asked, indeed, required to make entries
on the VRU system at some point during the workday during the day? A. Yes. . . .
Q. . . [E]mployees do this by the use of a Touch-Tone phone, correct? A. That‘s
correct. Q. And is it true that cell phones are not allowed in the process of
inputting time in that area? A. Cell phones are suggested – not to use cell phones,
since they drop calls and it‘s suggested to use a land line. Q. It‘s your
understanding that that is the company policy to discourage that? A. Yes. . . .
Q. If the employee does not have access to a land line between 8:00 and 5:00, if
that‘s the employee‘s schedule, what is the employee to do if the employee cannot
use his or her cell phone? A. Then they would use their home phone, if that‘s what
they need to do. Q. And they would do that after their shift? A. That‘s right.‖
Appellants thus submitted to the court substantial evidence that class members
labored off-the-clock performing work-related duties without compensation before
beginning work and after their shifts ended.5 The juxtaposition of VITAS‘s policy of no
pay for travel-time with its requirement that employees check their voicemail before their
first patient visit and input their VRU activity reports after completing their last patient
visit, suggests VITAS knew, or had reason to know, class members were working off-
the-clock without compensation. VITAS cannot have it both ways. It cannot deem its
employees to be off-the-clock during their commute from home to their first patient and
from their last patient to home, yet direct them to perform work-related duties of
checking their voicemail before arriving at their first patient and inputting their activity
reports by a telephone land line (in all likelihood from home) after their last patient.
Given that VITAS had reason to know employees were working off-the-clock, VITAS
was legally obligated either to ensure the employees did not perform such work or,
5 Respondents assert they submitted multiple employee declarations stating the
employees did not need to work off the clock to check their voicemail and input their
activity reports into VRU, or if they did work overtime, it was for too short a period for
the employees to bother reporting it. These declarations create a conflict in the evidence
going to the factual merits of appellants‘ claims which is not properly before us in
reviewing the court‘s certification ruling. (Sav-On, supra, 34 Cal.4th at p. 326; Carabini
v. Superior Court, supra, 26 Cal.App.4th at p. 245.)

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failing that, to compensate them. (Morillion, supra, 22 Cal.4th at p. 585.) VITAS could
not lawfully shrug its shoulders and turn away.6
In addition to denying certification of the straight-time/overtime class because no
evidence showed VITAS refused to pay reported overtime, the court also denied
certification on the ground the class was not ascertainable in two respects.
Ascertainability of a class depends, among other things, on the class‘s definition and on a
means of identifying the class. (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) The
court noted that a class‘s definition must be objectively ascertainable so that potential
class members can reasonably determine whether they are a member of the class or not.
(E.g. Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14.) The
court found the class definition was deficient because it contained a legal conclusion of
whether class members were ―properly‖ compensated. (But see Hicks v. Kaufman and
Broad Home Corp., supra, 89 Cal.App.4th at p. 915 [―A class is still ascertainable even if
the definition pleads ultimate facts or conclusions of law.‖].) Accepting the court‘s
finding, appellants proposed amending the class definition to remove the word
―properly.‖ The court did not take up appellants‘ proposal, and offered no reason for not
doing so. The court‘s seeming oversight was error. (Hicks at p. 916 [―if necessary to
preserve the case as a class action, the court itself can and should redefine the class where
the evidence before it shows such a redefined class would be ascertainable‖].) Because
we review only the reasons the trial court offers for its certification ruling, the court‘s
failure to explain why amending the definition would not have saved the class definition
precludes us from affirming the court‘s implied ruling that the definition was beyond
repair. (Jaimez, supra, at 181 Cal.App.4th at pp. 1297-1298; Bufil v. Dollar Financial
Group, Inc. (2008) 162 Cal.App.4th 1193, 1205.)
The second respect in which the court found the class was not ascertainable rested
on appellants‘ proposal to use VITAS payroll records to identify class members. The
6 Indeed, it appears the VRU system could log the length and time of day of
incoming calls by its employees, but VITAS disabled the logging feature because it
claimed to have no use for the data.

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court found the payroll records were an inadequate means because those records
identified ALL chaplains, nurses, and sales representatives (which numbered 505),
whereas class members were only those ―who did not receive compensation for all
straight and overtime hours worked.‖ We understand this finding to rest on the trial
court‘s apparent view that appellants‘ complaint sought recovery for reported, but
uncompensated, work time. We have noted, however, that appellants‘ wage claims
involve unreported time that VITAS reasonably should have known class members were
working. In any case, a successful certification motion does not require that the motion
individually identify every class member from the outset; it is sufficient that information,
such as company records, exists that establish ―the basic parameters of the class.‖ (Lee v.
Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1334-1336.) VITAS employee records
numbering 505 potential class members are such records.
Finally, the court denied certification on the grounds appellants were not typical of
class members, and class proceedings were not superior to individual actions. The court
did not discuss these grounds. Instead, it rested its findings on its determination that
common questions of law or fact did not predominate, a determination which we have
held flowed from the court‘s misapprehension of appellants‘ uncompensated wage
claims. Because the premise on which these findings were flawed, so too were the
findings resting on that premise. (Jaimez, supra, 181 Cal.App.4th at pp. 1297-1298
[when reviewing an order denying class certification, appellate courts ―consider only the
reasons cited by the trial court for the denial . . . .‖])
2. Overtime Exemption of Sales Representatives Properly a Class Question
The proposed class of employees denied compensation included VITAS‘s sales
representatives. VITAS asserted the sales representatives were not entitled to overtime
pay because they were ―outside salespersons‖ exempt from overtime laws. An outside
salesperson is defined as someone ―who customarily and regularly works more than half
the working time away from the employer‘s place of business selling tangible or
intangible items or obtaining orders or contracts for products, services or use of

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facilities.‖ (Cal. Code Regs., tit. 8, § 11070, subd. (J).) Before appellants moved for
class certification, VITAS moved for summary adjudication of its affirmative defense
that its sales representatives were outside salespersons exempt from overtime laws.
(VITAS‘s motion is not in the record, but VITAS‘s opposition to class certification refers
to the motion.) In denying VITAS‘s motion, the court adopted a five-factor test
articulated in Barnick v. Wyeth (C.D.Cal. 2007) 522 F.Supp.2d 1257, for determining
whether an employee is an outside salesperson. Barnick’s factors are: ―(1) ‗[T]he job
was advertised as a sales position and the employee was recruited based on sales
experience and abilities.‘ [¶] (2) ‗Specialized sales training‘ [¶] (3) ‗Compensation
based wholly or in significant part on commissions‘ [¶] (4) ‗Independently soliciting
new business‘ [¶] (5) ‗[R]eceiving little or no direct or constant supervision in carrying
out daily work tasks.‘ ‖ (Id. at p. 1262.) The trial court denied VITAS‘s motion for
summary adjudication because the court found Barnick’s factors raised triable issues of
fact.
In opposing appellants‘ motion for class certification, VITAS reiterated the
applicability of Barnick’s five-factor test.7 The court agreed about Barnick’s
applicability. The court further found Barnick’s five factors presented ―inherently
individualized‖ questions for determining whether a VITAS sales representative fell
within the outside-salesperson exemption to overtime laws. The trial court‘s order
denying certification does not recite any substantial evidence supporting its conclusion
that the outside-salesperson exemption presents predominantly individual questions for
VITAS sales representatives. Neither the court‘s order nor the parties suggest VITAS
had different categories of sales representatives for which Barnick’s five factors might
7 Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450
[affirmative defense may defeat certification]; but see Weinstat v. Dentsply Internat., Inc.
(2010) 180 Cal.App.4th 1213, 1235 [―the possibility that a defendant may be able to
defeat the showing of an element of a cause of action ‗ ―as to a few individual class
members[,] does not transform the common question into a multitude of individual
ones . . . .‖ ‘ ‖].)

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bestow exemption from overtime laws but not for others. In the absence of substantial
evidence of different categories of sales representatives, it stands to reason that most, if
not all, VITAS sales representatives are exempt, or none are. Given that state of affairs,
the court mistakenly concluded the exemption presents predominately individualized
questions of law or fact. (Sav-On, supra, 34 Cal.4th at pp. 326-327 [substantial evidence
must support trial court ruling that individual questions predominate].) Hence, the court
erred in rejecting class inclusion of the wage claims of sales representatives.
2. Alleged Denial of Meal Periods
Appellants sought certification of ―all employees who did not receive meal periods
as required by the Labor Code and the applicable Wage Order.‖ Appellants allege
employees missed their meal periods either because their work loads prevented them
from taking the time to stop working to eat a meal, or because VITAS‘s requirement that
employees keep their pagers turned on during meal breaks meant they did not enjoy the
uninterrupted 30-minute meal break to which the law entitled them. The court denied
certification because it held that the law required VITAS to offer only meal breaks, not to
ensure employees took them.8
We hold the court correctly applied California law. Labor Code section 512,
subdivision (a) states that employers must provide employees with meal periods of not
less than 30 minutes if they work shifts of more than 5 hours per day and a second 30-
minute meal period if they work shifts longer than 10 hours per day. Labor Code section
226.7, subdivision (a) states: ―No employer shall require any employee to work during
any meal . . . period mandated by an applicable order of the Industrial Welfare
8 The law on this issue is unsettled, and under review by our Supreme Court in
several pending cases. See Brinker Restaurant Corp. v. Superior Court (2008)
165 Cal.App.4th 25 [85 Cal.Rptr.3d 688], review granted Oct. 22, 2008, S166350;
Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278 [87 Cal.Rptr.3d 674,
review granted Jan. 14, 2009, S168806; Hernandez v. Chipotle Mexican Grill, Inc. (2010)
189 Cal.App.4th 751 [118 Cal.Rptr.3d 110] review granted Jan. 26, 2011, S188755; Tien
v. Tenet Healthcare Corp. (2011) 192 Cal.App.4th 1055 [121 Cal.Rptr.3d 773] review
granted May 18, 2011, S191756.

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Commission.‖ In keeping with the ordinary dictionary meaning of ―provide,‖ which
means ―to supply or make available,‖ (Webster‘s 9th New Collegiate Dict. (1984)
p. 948), the mandatory language does not mean employers must ensure employees take
meal breaks. ―The California Supreme Court has described the interest protected by meal
break provisions [to mean] that ‗[a]n employee forced to forgo his or her meal period . . .
has been deprived of the right to be free of the employer‘s control during the meal
period.‘ ‖ (Brown v. Federal Express Corp. (C.D.Cal. 2008) 249 F.R.D. 580, 585
(Brown), quoting Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094,
1104.) Consistent with the purpose of requiring employers to provide employees with
meal breaks, the Labor Code uses mandatory language (e.g., Lab. Code, § 226.7,
subd. (a) [―No employer shall require any employee to work during any meal or rest
period . . . .‖]) precluding employers from pressuring employees to skip breaks, declining
to schedule breaks, or establishing a work environment that discourages employees from
taking their breaks. A corollary to an employer‘s obligation to ensure that its employees
are free from its control for 30 minutes is that the employer must not compel the
employees to do any particular thing during that time – including, if employees so
choose, not taking their meals. (Brown, supra, at p. 585.)
Substantial evidence existed that VITAS offered meal breaks to its employees.
VITAS told employees during orientation that they needed to take their meal breaks.
VITAS‘s written policies stated employees were entitled to a 30-minute meal break
during any shift of five or more hours. The trial court found that the reasons an employee
might not take a meal break involved predominantly individual questions not amenable to
common proof. The court‘s findings coincide with the common-sense notion that
individual questions about the reasons an employee might not take a meal period are
more likely to predominate if the employer need only offer meal periods, but need not
ensure employees take those periods. The trial court‘s finding was not an abuse of
discretion.
Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, does not, contrary
to appellants‘ assertion, establish that an employer must guarantee employees take their

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meal periods. Cicairos involved an employer at summary judgment in which triable
issues of fact existed whether the employer had a policy against providing breaks. The
employer in Cicairos pressured its truck driver employees to make a certain number of
trips during a work day, monitored their progress with a tracking system, did not include
a code in the tracking system for rest stops, and did not schedule meal breaks for the
drivers. (Id. at pp. 955-956.) These and other aspects of the work environment
effectively deprived drivers of an opportunity to take breaks; it follows that an employer
who frustrates its employees‘ exercise of their right to meal periods violates the
employer‘s obligation to ―provide‖ meal periods. (Id. at pp. 962-963.) That an employer
may not frustrate the exercise of the employees‘ meal breaks does not equate with the
obligation to ensure that an employee actually takes the break. (Brown, supra,
249 F.R.D. at p. 586 [Cicairos is ―consistent with an obligation to make breaks available,
rather than to force employees to take breaks‖]; see also Kenny v. Supercuts, Inc.
(N.D.Cal. 2008) 252 F.R.D. 641, 646 [―Cicairos is not persuasive authority for the
proposition that employers must ensure that their employees take meal breaks‖].) And, to
the extent individual work schedules or pagers may have interfered with, or prevented, an
employee from taking a meal period, the trial court‘s finding that individual questions
predominated was within the realm of reasonable findings such that it was not an abuse
of discretion.
3. Alleged Denial of Rest Periods
Appellants sought certification of ―all employees who did not receive rest periods
as required by the Labor Code and the applicable Wage Order.‖ The trial court denied
certification for ―the same reasons it denies certification of the Meal Breaks Class.‖
Appellants do not separately address the trial court‘s error, if any, in denying certification
of a rest-period class. Accordingly, we pass on any further discussion of the point, and
affirm that part of the order.

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DISPOSITION
The court‘s order denying certification of Subclass I covering straight time and
overtime is reversed and the court is ordered to certify the class as defined by the motion
for class certification except (1) for the exclusion of travel time and (2) subject to further
amendment by appellants or the court sua sponte considering the propriety of including
the word ―properly‖ within the definition‘s phrase, ―properly compensated.‖ In all other
respects, the court‘s order denying certification is affirmed. Appellants to recover their
costs on appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.

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