Monday, October 22, 2012

Second District Reverses Denial of Certification of “Independent Contractor” Issue On Behalf of Newspaper Carrier Class: Ayala v. Antelope Valley Newspapers

On October 17, 2012, the Second District (Division 4) published its class certification opinion in Ayala v. Antelope Valley Newspapers, __ Cal.App.4th __(2012) [2012 Cal. App. LEXIS 1083], which overturned  an order denying class certification of “a class of newspaper home delivery carriers … alleging that AVP improperly classified the carriers as independent contractors rather than employees....”  Slip Opinion, at 2.  The trial court denied certification based on its conclusion that “there were numerous variations in how the carriers performed their jobs, and therefore common issues did not predominate.”  See id.  The Court of Appeal disagreed with this assessment, and reversed.

As explained by the Court, the trial court erred in its finding because resolution of the overarching issue of “control” was governed by a standardized “form” agreement which set forth the general duties performed by all carriers that comprised the class:
We conclude, however, that those variations do not present individual issues that preclude class certification. Instead, because all of the carriers perform the same job under virtually identical contracts, those variations simply constitute common evidence that tends to show AVP's lack of control over certain aspects of the carriers' work. Similarly, the so-called “secondary factors” that must be considered when determining the primary issue in this case—whether AVP improperly classified the carriers as independent contractors rather than employees—also may be established for the most part through common proof, since almost all of those factors relate to the type of work involved, which is common to the class. Therefore, we hold the trial court erred in finding that the independent contractor-employee issue is not amenable to class treatment.
Slip Opinion, at 2.

Significantly, the Court further reasoned that the finding of individualized inquiry was improperly predicated upon evidence denying the existence of the policies underpinning the plaintiff’s theory of liability, which the Court concluded actually served to underscore the uniformity of the question of “control” as to the class as a whole:
In denying class certification, the trial court agreed with AVP that no commonality exists regarding AVP's right to control because individualized questions predominate as to who performs the services, when and where they perform the services, and how they perform the services. Many of the court's observations (and AVP's arguments), however, actually point to conflicts in the evidence regarding AVP's right to control rather than individualized questions. For example, the court noted that AVP's home delivery manager declared that AVP does not have a policy or practice to instruct or direct carriers on how to fold and deliver their papers, and some carriers testified that they were never so instructed, but two of the plaintiffs testified that AVP had rules on folding the papers and how to deliver them. Similarly, the court noted that the home delivery manager and some carriers testified that AVP does not require carriers to bag or rubber band the newspapers, but one of the plaintiffs testified that carriers were required to bag them.
Simply put, much of AVP's evidence, upon which the trial court relied, merely contradicts plaintiffs' allegations that AVP had policies or requirements about how carriers must do their jobs. The parties do not argue that some carriers operating under the form agreements are employees while others are not. Both sides argue that AVP has policies that apply to all carriers. The difference between the parties is the content of those policies. Plaintiffs argue that the policies are ones that control the way in which the carriers accomplish their work; AVP argues the policies impose certain requirements about the result of the work but allow the carriers to determine manner and means used to accomplish that result. While there may be conflicts in the evidence regarding whether the policies plaintiffs assert exist, the issue itself is common to the class. Similarly, whether the policies that exist are ones that merely control the result, rather than control the manner and means used to accomplish that result, is an issue that is common to the class.
Slip Opinion, at 17-18.

Thus, the Court’s opinion provides additional authority for the proposition that certification cannot be avoided by an employer submitting “merits-based” evidence seeking to attack its own standardized written policies that form the basis of a plaintiff’s theory of liability.

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