Second District Upholds Order Decertifying Misclassification Class in Keller v. Tuesday Morning, Inc.

On December 4, 2009, the Second District (Division 6) issued an opinion upholding the trial court’s Order decertifying a manager misclassification class in Keller v. Tuesday Morning, Inc., __ Cal. App. 4th __ (2009). The thrust of the Court’s analysis – which relied heavily on previous decisions in Walsh v. IKON Office Solutions, Inc, 148 Cal. App. 4th 1440 (2007) and Dunbar v. Albertson's Inc., 141 Cal. App. 4th 1422 (2006) – turned on a failure of predominance due to variances in manager's duties from store to store.  The Court concluded that there was no abuse of discretion, as substantial evidence supported the trial court's conclusion that individualized issues of liability and damages would predominate over issues common to the class if the overtime claims were tried as a class action:

Here, the record contained the declarations of four managers, TM's expert, its Vice-president of Store Operations, and five of TM's attorneys. All asserted in detail the wide disparity in store location, size, configuration, management duties and styles. They also established that managers routinely exercise their independent judgment. In his written ruling, Judge Munoz noted the varying characteristics of the stores and identified matters he believed were susceptible to class-wide proof (mandated management policies) and those that were individual inquiries (time spent performing exempt duties and exercising discretion). The court observed that the managers, who filed declarations for the class, were impeached by their deposition testimony. This was a comment on the nature of the evidence, and did not constitute a consideration of the case on the merits, or a determination of witness credibility.

Slip Opinion, at 10-11.