Bradley v. Networkers Internat.

Filed 2/5/09 Bradley v. Networkers International CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LES BRADLEY et al.,
Plaintiffs and Appellants,
v.
NETWORKERS INTERNATIONAL LLC,
Defendant and Respondent.
D052365
(Super. Ct. No. GIC862417)
APPEAL from an order of the Superior Court of San Diego County, William R.
Nevitt, Jr., Judge. Affirmed.
Three plaintiffs1 filed a class action complaint against Networkers International,
LLC (Networkers), alleging violations of state laws governing overtime pay, rest breaks,
and meal breaks. Plaintiffs moved to certify the class, but the court denied the motion,
concluding plaintiffs did not meet their burden to show common factual and legal
1 The plaintiffs are Les Bradley, Edwin Jennings, and Versil Milton.

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questions would predominate over individual issues. Plaintiffs appeal. We conclude the
court's ruling was not an abuse of discretion, and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Networkers is a business that provides technical personnel services to the
telecommunications industry. In about 2004, Networkers contracted with three
telecommunications companies, EXi Parsons Telecom LLC (EXi), Ericsson Inc.
(Ericsson), and Telecom Network Specialists, to supply skilled laborers to install and
service cell sites in Southern California.2 Each of these contracts provided the laborers
would perform work under the direction of supervisors employed by the
telecommunications company and set forth detailed requirements for worker
qualifications and the work to be performed. Under these contracts, Networkers was
responsible for recruiting and managing the employees, and warranted that the work
would be performed in a satisfactory manner.
Networkers thereafter retained approximately 140 skilled workers, including the
three named plaintiffs, to fulfill these contracts and provide repair and installation
services at the cell sites. Most workers were hired to work on cell sites for a particular
customer, e.g., some workers were hired and trained to work only on Ericsson/T-Mobile
cell sites, and others were hired and trained to work only on EXi sites. Plaintiffs Bradley
2 Cell sites are the tower facilities that receive and send radio transmissions to and
from cellular phones. The Ericsson contract concerned primarily services for T-Mobile
cell sites. For convenience, we shall refer to these sites as Ericsson/T-Mobile cell sites.

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and Milton worked at Ericsson/T-Mobile cell sites and plaintiff Jennings worked at EXi
cell sites.
Networkers required each worker to sign a standard contract, entitled
"Independent Contractor Agreement," which stated the worker was an independent
contractor rather than an employee. Based on its characterization of the workers as
independent contractors, Networkers did not pay premium wages for overtime,
compensate the workers for travel or waiting times, or establish a policy requiring meal
or rest breaks.
In late 2005 or early 2006, plaintiffs Bradley and Jennings (along with numerous
other workers) terminated their relationship with Networkers. Shortly after, Networkers
replaced its "Independent Contractor Agreement" with an "Employment" agreement, and
began paying overtime wages to these workers. Plaintiff Milton signed the new
employment agreement, but left the company soon after.
Within several months, the three plaintiffs filed a class action lawsuit against
Networkers, alleging Networkers violated wage and hour laws by failing to pay overtime
and provide rest and meal breaks, failing to maintain required employment records, and
requiring plaintiffs to underreport their hours. Plaintiffs claimed that although
Networkers hired each worker using the standard " 'Independent Contractor Agreement,' "
the actual relationship was in fact an employer-employee relationship and therefore
Networkers was governed by state wage and hour laws. Plaintiffs sought to represent a

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class of 140 technical support personnel who worked in California for Networkers at cell
sites owned or operated by Networkers' customers.3
Based on these factual allegations, plaintiffs asserted seven causes of action: (1)
failure to pay overtime compensation (Lab. Code,4 §§ 510, 1194); (2) failure to provide
adequate meal periods (§§ 226.7, 512; Wage Order No. 4); (3) failure to provide rest time
(Wage Order No. 4); (4) failure to furnish accurate wage statements (§§ 226, 226.3;
Wage Order No. 4); (5) failure to keep accurate payroll records (§§ 1174, 1174.5; Wage
Order No. 4); (6) waiting time penalties (§ 201 et seq.); and (7) unfair business practices
(Bus. & Prof. Code, § 17200 et seq.).
Plaintiffs then moved to certify the complaint as a class action. In support, they
submitted a copy of Networkers' standard Independent Contractor Agreement, and
produced evidence that it was signed by each putative class member. The agreement
contained numerous provisions reflecting an independent contractor relationship,
including that the worker was "responsible for determining when, where and how the
Work is performed"; the worker was entitled to delegate the work or designate other
3 The complaint defined the class as follows: "All persons, whether designated by
Networkers as an employee, or, contrary to fact and law, designated as a consultant or
independent contractor, who are employed or have been employed by Networkers in
California to work for Networkers' clients or Networkers' clients' telecommunications
customers as non-exempt electronic technical support personnel, including technical
services supporters, field technicians, cell site surveyor and others, to assist in the survey,
deinstallation, installation, upgrading, maintenance, servicing and repair of such
customers' facilities, cell sites and/or equipment . . . ."
4 All further statutory references are to the Labor Code, unless otherwise specified.
References to Wage Orders are to the 2001 Industrial Welfare Commission Wage Orders.

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individuals to perform the work; the worker could bid for the jobs; and the worker was
required to maintain liability, errors and omissions, and workers compensation insurance.
Each named plaintiff also proffered his declaration asserting that Networkers did
not adhere to these contractual provisions, and instead treated all of its workers as
employees, and these employment policies were uniformly applied to all putative class
members. The declarations provided detailed descriptions of the manner in which each
plaintiff was hired by Networkers, the work assignment process, and the nature of the job
and working conditions. We summarize these declarations below.
In his declaration, plaintiff Milton stated that Networkers hired him in December
2004 as a field technician after being recruited by Networkers employee Pete Wu.
Milton signed the standard " 'Independent Contractors Agreement,' " but did not
understand he was not an employee entitled to state law employee protections. Despite
the express terms of the agreement, Milton was not required to have liability, errors and
omissions, or workers' compensation insurance; he was not permitted to delegate the
work; he was required to follow specific directions as to the scheduling and priority of
the work; he was paid by the hour and did not bid for his employment; there was no
negotiation regarding the hourly rate; and he was required to obtain a specific set of tools
from Networkers and Networkers deducted money from his paycheck to pay for the tools.
Additionally, Milton received introductory job training from Networkers.
With respect to his specific job assignments, Milton said he worked exclusively on
cell sites owned by T-Mobile which contained equipment made by Ericsson. Milton was
assigned approximately 45 to 50 cell sites and was responsible for maintenance, service,

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and repair of each of these cell sites. Milton received his daily assignments through the
receipt of a "trouble ticket" on his computer email or cell phone, which came from a
Networkers switch technician or T-Mobile customer service. Milton said that before
starting work each day, "Networkers required me to check my email on my computer at
home for the trouble tickets I was to work on that day. I typically had as many as 25-30
trouble tickets. I was required to acknowledge receipt of all trouble tickets immediately."
Once Milton was at the job site, he "was not permitted to leave the site until the
problem was fully resolved," which he said "meant that I could not simply stop for lunch
or leave after an eight hour shift if the problem was not resolved—in fact doing so would
lead to discipline if not immediate termination. If I happened to pass by a fast food
restaurant between cell sites, and I was not rushing to a 'Critical' site, I would go through
the drive-through and eat in my car while driving to the next cell site destination. . . . [¶]
Similarly, because I was not allowed to leave a jobsite until the work was done, I
regularly could not take any rest breaks while on site. I believed that I would be fired if I
stopped working to take a rest break. Additionally, as Networkers set priority codes for
the severity of cell site problems, I was required to arrive at the next cell site as soon as
possible. As a result, I regularly did not have time to take a rest break between working
on cell sites. [¶] . . . [¶] . . . Once the trouble ticket was resolved, I would email back to
the switch techs or to T-Mobile to confirm that it was resolved. If the switch indicated
the problem was ongoing, I had to stay and keep working until the problem was fixed. If
I could not fix the problem, I would call a Networkers' supervisor or other tech to
troubleshoot the problem over the telephone; if there was still a problem, a supervisor or

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other tech would come to the site in person. . . . Additionally, if a site went back down,
the crew would be called back immediately . . . and they would not be allowed to submit
the time spent on the call back." Milton also said he was required to travel long
distances, but generally was not permitted to record his full travel times, and 12-hour
days were "common." Milton was required to be " 'on-call' " at least one week each
month. Although a Networkers' supervisor was not always at each cell site location, a
Networkers' supervisor was always available by telephone. Milton submitted timesheets
to Networkers and also entered his time on the customer's (Ericsson's) computer system.
In December 2005, Networkers informed Milton that it would be reclassifying him
from an "Independent Contractor" status to "W2 Employee" status, beginning in January
2006. After the reclassification, Networkers reduced Milton's hourly pay, and paid for
overtime hours. The work remained exactly the same, and Networkers did not change its
policies regarding rest breaks and restrictive reporting times (off-the-clock, on call, and
travel time).
The declaration of plaintiff Bradley, who worked for Networkers as a field
technician from December 2004 through December 2005, was essentially identical to
Milton's declaration in most respects. As with Milton, Bradley was recruited to work for
Networkers by employee Pete Wu; worked exclusively at T-Mobile cell sites servicing
Ericsson equipment; signed the Independent Contractor Agreement; was paid hourly; was
required to have a specific tool set; was provided with introductory training; was assigned
work under the "trouble ticket" system; and sometimes travelled long distances to the
sites. The primary difference in the declarations is that Bradley terminated his

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relationship with Networkers before Networkers converted its independent contractor
agreement into an employment agreement. Additionally Bradley, unlike Milton, stated
he understood that Networkers did not consider him to be an employee, but Bradley
believed this classification was legally erroneous.
The declaration of the third plaintiff (Jennings) contained substantially similar
information as was in the other two declarations, except that he was assigned to work on
EXi cell sites and had more direct customer supervision at the sites. As with Milton,
Jennings said he signed the Networkers' standard Independent Contractor Agreement, but
did not consider himself an independent contractor "as I had always been treated as an
employee for the same or similar type of work . . . ." He did not bid on the employment
contract or negotiate any of its terms, and Networkers required him and all of the other
workers to purchase a complete set of tools and then deducted the cost from the workers'
paychecks.
With respect to his specific EXi work, Jennings said he was trained by Networkers
and EXi on basic tasks specific to the equipment being installed, maintained, and
repaired. He then "worked on various sites decommissioning, installing, and re-
commissioning equipment . . . ." Jennings said "[t]he travel time to the sites varied and
could be as little as 15 minutes or as long as 2 [to] 3 hours. I would learn where the
installation site was by email or phone call from a supervisor or whomever was the lead
installer for that day. I did not determine where or when I would install a cell site. I
would work side by side with other employees to compete the installation." Jennings was
required to submit timesheets to Networkers through a computer timekeeping source, and

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all of the time "had to be submitted to my supervisor for approval." He was not paid
premium wages for overtime work, even though he "regularly worked over 40 hours a
week and regularly worked more than 8 hours a day . . . ." He said that "[o]n days when
the installation took a long time, we were not able to take any meal or rest breaks at all."
Jennings also said he "felt pressured by my supervisor to shave my time on certain
projects," and was "asked to enter less time for particularly time-consuming tasks. At the
end of the day, we would ask the lead how many hours we should all put down for that
day's work and whatever he said, we put down, even when that was less than the total
amount of time we had actually spent working."
In explaining his daily work, Jennings said: "We were forbidden to leave the site
once we started working on the equipment. . . . [¶] . . . Sometimes, a site that we installed
that we had got up and running would go back down. When that happened, we were
required to . . . return to the site immediately to get it up and running again. Typically,
we were not allowed to put down the hours we spent on the call-back work on the site.
[¶] . . . [¶] . . . Networkers employed supervisors, alongside EXi supervisors, to manage
employees in the field working on cell sites. While supervisors may not be at each cell
site location , a supervisor was always available by telephone should I need assistance
with a cell site problem."
Plaintiffs also submitted the declarations of two putative class members, Ernie
Garcia and Shane Pinkston, each of whom worked as Networkers field technicians in
2005, and primarily worked at T-Mobile/Ericsson cell sites. Their declarations were
similar to the declarations of Bradley and Milton, reflecting the same form of

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recruitment, work assignment process, working hours and conditions, and supervision
levels. As with Bradley, these individuals terminated their relationship with Networkers
before Networkers recharacterized its workers as employees. As with Milton, both stated
they did not fully understand the distinction between an independent contractor and an
employee.
Plaintiffs additionally submitted the declaration of their counsel, who said the
three plaintiffs were chosen to represent the class because their claims were typical of the
claims of all workers employed under the same Independent Contractor Agreement, each
of whom performed similar technical work and were subject to identical management
policies. In addition, plaintiff Milton "was chosen to represent those persons who
Networkers reclassified in January 2006 from 'independent contractor' to 'employee' even
though their job duties did not in any way change." Counsel said that 98 of the 140
putative class members worked exclusively under the Independent Contractor
Agreement, and the remaining class members were in the same position as Milton, i.e.,
initially hired under the Independent Contractor Agreement and then signed a new
agreement in January 2006 converting the worker's status to an employee position.
In opposing plaintiffs' class certification motion, Networkers argued the class
action was inappropriate because there were numerous individualized issues regarding:
(1) the number of "trouble tickets" or job assignments performed by each class member;
(2) the level of supervision of each class member; and (3) the different job
responsibilities performed for different clients. In support, Networkers relied on
plaintiffs' declarations and portions of plaintiffs' deposition transcripts.

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In his deposition testimony, Bradley confirmed that he had understood he was
"labeled" an independent contractor rather than an employee. Bradley also stated that
generally there was no Networkers supervisor working at the cell sites, or monitoring his
work, and the majority of the time, he was the only person working at the site. Bradley
also agreed that he used his "professional expertise" to fix a problem in the field; the
number of assignments that a person worked on each day depended on numerous factors,
such as the work location and type of problem; and he would receive "trouble tickets"
from Networkers' clients and not directly from Networkers. Milton similarly testified
that the time needed to resolve a particular problem varied depending on the task; he was
usually the only worker at a cell site fixing the reported problem; and the number of cell
sites that he would visit varied each day. In his deposition testimony, Jennings testified
that generally the only instructions he received from Networkers before he went to a
jobsite was to "show up on time" and "do what they [tell] you to do," and that generally
there was a "lead" EXi supervisor on the job telling him what to do, and the time it took
to perform each job varied and depended on the nature of the job.
In reply, plaintiffs produced copies of Networkers' payroll data for each putative
class member, reflecting the alleged overtime pay violations. Plaintiffs also submitted
hundreds of pages of Networkers' discovery responses. In these responses, Networkers:
(1) admitted it did not pay overtime to its technical service workers because they were
independent contractors exempt from applicable overtime pay requirements; (2) admitted
it did not have rest or meal break policies or maintain records of rest or meal breaks; and

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(3) stated that because it did not supervise its service workers, it did not know whether
the workers took rest or meal periods and the extent or frequency of such breaks.
After considering the parties' submissions and holding a hearing, the court denied
plaintiffs' class certification motion. The court stated: "[P]laintiffs have not shown that
common questions or fact or law will predominate over individual questions. For
example, plaintiffs state, 'The disconnect between the reality of class members' work and
the recitations of the [Independent Contractor] contract is so great that it borders on the
absurd[.]' . . . However, there is insufficient evidence that the 'reality' that plaintiffs
describe in [their] opening brief was experienced so commonly across the class that
common questions of fact or law will predominate over individual questions. Moreover,
it appears that the actual existence of damages and/or the manner of incurring damages
would differ for individual members of the proposed class." The court declined to rule
on each of Networkers' numerous evidentiary objections (spanning 137 pages), stating
that "[e]ven if all of [Networkers'] objections were overruled, the Court's ruling would
not change."
Plaintiffs appeal.
DISCUSSION
I. General Legal Principles Governing Class Action Certification
" 'Class actions serve an important function in our judicial system. By establishing
a technique whereby the claims of many individuals can be resolved at the same time, the
class suit both eliminates the possibility of repetitious litigation and provides small
claimants with a method of obtaining redress.' " (Richmond v. Dart Industries, Inc.

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(1981) 29 Cal.3d 462, 469; Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496,
1500.) This state's public policy supports the use of class actions to enforce California's
minimum wage and overtime laws for the benefit of workers. (See Sav-On Drug Stores,
Inc. v. Superior Court (2004) 34 Cal.4th 319, 340 (Sav-On.) However, "because group
action . . . has the potential to create injustice, trial courts are required to ' "carefully
weigh respective benefits and burdens and to allow maintenance of the class action only
where substantial benefits accrue both to litigants and the courts." ' " (Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 435 (Linder); Seastrom, supra, 149 Cal.App.4th at p.
1500.)
"The party seeking certification . . . must establish the existence of an
ascertainable class and a well-defined community of interest among the class members.
[Citation.] 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." (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470; see also Code
Civ. Proc., § 382.) The proponent must show the "class action is superior to individual
lawsuits or alternative procedures for resolving the controversy." (Bufil v. Dollar
Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1204; accord City of San Jose v.
Superior Court (1974) 12 Cal.3d 447, 459.)
In evaluating whether the plaintiffs met their burden to show common questions of
law or fact predominate, the trial court should "consider whether the theory of recovery
advanced by the proponents of certification is, as an analytical matter, likely to prove

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amenable to class treatment." (Sav-On, supra, 34 Cal.4th at p. 327.) Although the trial
court does not rule on the merits of the lawsuit, the court should consider the elements of
the claims and defenses to determine if the need for individualized proof of class
members' claims predominates over common proof. (Lockheed Martin Corp. v. Superior
Court (2003) 29 Cal.4th 1096, 1106; Linder, supra, 23 Cal.4th at pp. 439-440.) In
conducting this analysis, a court may look to the allegations of the complaint, and the
declarations of attorneys representing the plaintiff class. (Sav-On, supra, 34 Cal.4th at p.
327.)
Trial courts " 'are ideally situated to evaluate the efficiencies and practicalities of
permitting group action' " and therefore are " 'afforded great discretion' " in evaluating the
relevant factors and in ruling on a class certification motion. (Sav-On, supra, 34 Cal.4th
at p. 326.) 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] . . . . "Any valid pertinent reason stated will
be sufficient to uphold the order." ' " (Id. at pp. 326-327.) In determining whether the
record contains substantial evidence supporting the ruling, a reviewing court does not
reweigh the evidence and must draw all reasonable inferences supporting the court's
order. (Id. at p. 328.)
II. Analysis
A. Overview
The predicate legal issue underlying Networkers' liability is whether plaintiffs
were independent contractors or employees. The trial court found the " 'reality' " of the

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work differed among the class members and therefore plaintiffs did not prove common
questions would predominate on this legal issue. In reviewing the record, we find
insufficient evidentiary support for this conclusion. Although there were certain
differences in the class members' particular jobs, these differences are largely irrelevant
to the legal issue of whether the worker was an employee or an independent contractor.
But this determination does not resolve the appellate issue before us. Even if
some issues are capable of common proof, the court may properly deny class certification
if other legal or factual issues would require individual proof or analysis, and these
aspects of the case could not be effectively managed in a class action. (See Wilens v. TD
Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 756.) As explained below, there
was a reasonable ground for the trial court to conclude individual issues would
predominate on the existence and amount of damages for each class member and that
these individual issues would make a class action unmanageable.
In reaching these conclusions, we reject plaintiffs' argument that the trial court
failed to adequately explain the basis for its ruling. Although it would have been helpful
if the court had explained its reasoning in more detail, the court made clear the essential
grounds for its order: (1) individual issues would predominate on the independent
contractor/employee issues; and (2) "the actual existence of damages and/or the manner
of incurring damages would differ for individual members of the proposed class." On the
basis of the latter finding alone, the court's conclusion was supported.

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B. Independent Contractor Issue
As recognized by both parties, a foundational legal question underlying
Networkers' liability for the wage and hour violations is whether plaintiffs were
independent contractors or employees. If plaintiffs were independent contractors,
Networkers was not required to comply with rules governing overtime and meal and rest
periods. On the other hand, if plaintiffs were employees, plaintiffs are likely to prevail on
at least some of their claims because Networkers has admitted it did not comply with
wage and hour laws applicable to employees.
As they did below, both parties agree that S.G. Borello & Sons, Inc. v. Department
of Industrial Relations (1989) 48 Cal.3d 341 (Borello) sets forth the appropriate factors
for determining whether a worker is an employee or an independent contractor.5 Under
this test, a court should evaluate all relevant factors, and the label that the parties attach to
the relationship "is not dispositive and will be ignored if their actual conduct establishes a
different relationship. (Borello, supra, 48 Cal.3d at p. 349.)" (Estrada v. FedEx Ground
Package System, Inc. (2007) 154 Cal.App.4th 1, 10-11 (Estrada).) The determination is
one of fact and must be affirmed if supported by substantial evidence. (Id. at p. 11;
Borello, supra, at p. 349.)
5 Those factors include: (1) the employer's right to control the means and manner of
accomplishing the result; (2) whether the worker is engaged in a distinct occupation or
business from the employer; (3) whether the type of occupation is usually "done under
the direction of the principal or by a specialist without supervision"; (4) the skill required
in the particular occupation; (5) the length of time for which the services are to be
performed; (6) the method of payment whether by the time or by the job; (7) whether the
parties believe they are creating an employee relationship; and (8) the right to discharge
the worker at will. (Borello, supra, 48 Cal.3d at pp. 350-351.)

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We agree with plaintiffs that the evidence relevant to the factual question of
whether the class members were employees or independent contractors is common
among all class members. Each of the class members signed a standard "Independent
Contractor Agreement" that characterized the worker as an independent contractor; each
class member was engaged in a similar occupation (skilled labor in installing or servicing
cell sites); each class member was required to work full time and to be available on every
working day and during assigned "on call" times; each class member was told how to
prioritize each day's jobs; each class member received hourly pay, rather than pay by the
job; each class member submitted timesheets to Networkers and Networkers' customers
for approval; each class member was required to use a specific set of tools on the job and
was required to obtain those tools from Networkers. Additionally, although Networkers'
standard contract stated that the workers had the right to control the manner and means of
the work, including that the workers were permitted to subcontract the work, Networkers
had specific time and place job requirements that all workers were required to follow, and
the workers could not deviate from these rules or delegate the work.
These common facts would be relevant in each class member's case against
Networkers and would constitute the focus of the proof on the independent
contractor/employee issue. (See Estrada, supra, 154 Cal.App.4th at pp. 13-14 [finding
common issues in class action involving question whether workers were employees or
independent contractors].) Networkers argued below that there would be a need for
individualized proof because of differences among the workers pertaining to job titles,
skill levels, pay grades, and the specific type of repair or installation work. However,

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these distinctions are not material to the independent contractor issue in this case. The
fact that some workers engaged in repair work and others engaged in installation work, or
that workers had different pay grades or worked for different lengths of times on
particular days, is not probative of whether the workers here were employees or
independent contractors under the Borello test. (See Borello, supra, 48 Cal.3d at pp. 350-
351.) Under the Borello analysis, the focus is not on the particular task performed by the
employee, but the global nature of the relationship between the worker and the hirer, and
whether the hirer or the worker had the right to control the work. (Ibid.) The undisputed
evidence showed Networkers had consistent company-wide policies applicable to all
employees regarding work scheduling, payments, and work requirements. Whether those
policies created an employer-employee relationship, as opposed to an independent
contractor relationship, is not before us. The critical fact is that the relevant evidence
would be largely uniform throughout the class.6
Networkers also argued that individualized analysis would be necessary because
the class members worked for different customers and some workers were more closely
supervised at particular job sites than were other workers. However, plaintiffs' theory of
the case was not that the class members were employees because they were supervised
while working at the job sites. Because of the nature of the job—repair and installation at
6 In this regard, Networkers' reliance on decisions involving exempt employees is
misplaced. (See Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440 and
Dunbar v. Albertson's, Inc. (2006) 141 Cal.App.4th 1422.) In these cases, the specific
nature of the class members' daily tasks was relevant because the issue whether a worker
was entitled to overtime depended on the amount of time the worker spent on a particular
task.

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numerous remote sites throughout Southern California—plaintiffs acknowledged that
most class members were not generally supervised by Networkers on technical portions
of their jobs and had at least some discretion in the actual performance of the work.
Plaintiffs claimed instead that Networkers gave its workers little or no discretion in areas
such as responding to the assigned work, prioritizing the work, scheduling the jobs, the
amount of payment per job, and selecting the tools with which to work. In considering
these claims, the court would be required to address essentially the same legal and factual
issues with respect to each class member.
We also find unhelpful Networkers' reliance on the fact that the plaintiffs may
have had different subjective views of their business relationship with Networkers. The
evidence showed that Bradley understood that the relationship was characterized as an
independent contractor relationship, but did not believe this was legally correct. The
other declarants asserted that they believed they were employees. The difference in this
evidence is not legally significant. Networkers did not produce any evidence that the
employees subjectively believed the realities of the job reflected solely an independent
contractor relationship.
Viewing the evidence in the light most favorable to the court's ruling, the only
reasonable conclusion is that the factual and legal questions would be essentially the
same among the plaintiff class members on the independent contractor issue.
C. Specific Claims and Damages
As an alternate basis for its denial of plaintiffs' class certification motion, the trial
court found there were substantial individual differences in proof pertaining to damages

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for the proposed class members. As explained below, the court did not abuse its
discretion in reaching this determination, and concluding that the differences would make
the class action unmanageable.
1. Alleged Overtime Wage Violations
An employer is required to pay its employees 1.5 times the usual hourly wage for
work in excess of eight hours per day or 40 hours per week, and two times the usual wage
for work in excess of 12 hours. (§ 510; see also Wage Order No. 4, § 3(A).) Networkers
admitted that it paid no overtime wages to any class members from December 2004
through December 2005. Thus, if plaintiffs prove they were employees, the fact that
Networkers did not pay overtime wages is a common issue that can be proved classwide.
However, the amount of overtime pay damages to which each class member
would be entitled requires individualized analysis because the number of hours worked
each day was not uniform. Plaintiffs concede this fact, but argue that this issue could be
effectively managed because it is a simple task to make the calculations based on the
payroll records that have already been produced by Networkers. In theory, we agree with
this assertion. The existence of time records showing the precise amount of hours
worked by each employee could provide a reasonable basis for a court to award damages
for failure to pay overtime wages. (See Employment Development Dept. v. Superior
Court (1981) 30 Cal.3d 256, 266 ["a class action is not inappropriate simply because each
member of the class may at some point be required to make an individual showing as to
his or her eligibility for recovery or as to the amount of his or her damages"]; accord Sav-

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On, supra, 34 Cal.4th at p. 333; Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th
715, 746-751.)
But the damages issue was not so simple in this case. As recognized by the trial
court during the class certification hearing, the overtime pay issue was inextricably linked
with plaintiffs' claims that they were unlawfully pressured by their supervisors to
underreport their hours, and their claims that they were not permitted to fully record
travel and waiting times. The evidence shows that this underreporting did not occur on a
consistent basis and was dependent on the particular job and the particular worker. Thus,
to accurately determine the entitlement and amount of overtime pay, each of the class
members would be required to testify, and Networkers would be entitled to present the
testimony of the various individual supervisors, requiring numerous mini-trials on the
factual issues regarding if and when the compelled underreporting occurred.
As they did at the hearing below, plaintiffs acknowledge the need for
individualized analysis on this claim, but suggest the court could have severed the
underreporting claims from the rest of the action. Although the trial court could have
elected to do this, it was not required to take this approach. The court asked plaintiffs'
counsel whether it was waiving these claims, but counsel (understandably) declined to do
so. Under the circumstances, the court could reasonably find that it would not be an
efficient use of resources for the parties to litigate all the overtime claims in a class
action, and then to require individual trials on the issue of the underreporting of work
time.

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Plaintiffs argue the court could use statistical or sampling evidence to prove the
damages on the underreporting issue. Although courts have upheld the use of such
methods to evaluate damage claims (see Sav-On, supra, 34 Cal.4th at p. 333), the trial
court had a reasonable basis to conclude the compelled underreporting claims could not
be effectively proved by these methods and instead would require highly individualized
factual determinations. Where the entitlement to damages varies greatly among class
members so as to require extensive individualized proof, a trial court may properly
conclude the action is not appropriate for class treatment. (Wilens v. TD Waterhouse
Group, Inc., supra, 120 Cal.App.4th at p. 756; see Fletcher v. Security Pacific National
Bank (1979) 23 Cal.3d 442, 448-449.)
2. Alleged Meal and Rest Break Violations
We reach a similar conclusion with respect to the alleged meal and rest break
violations. Generally, an employer must "provide" an employee a 30-minute meal break
for a work period of more than five hours and a second 30-minute meal break for a work
period of more than 10 hours per day, with certain waivers for six- or 12-hour shifts.
(§ 512, subd. (a); Wage Order No. 4.) An employer also has a duty to provide 10-minute
rest breaks for every four hours worked. (Wage Order No. 4.) "If an employer fails to
provide an employee a meal period or rest period . . . , the employer shall pay the
employee one additional hour of pay at the employee's regular rate of compensation for
each work day that the meal or rest period is not provided." (§ 226.7, subd. (b).)

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Although the law is unsettled as to the precise scope of an employer's duty to
provide these breaks,7 it is undisputed Networkers did not have a policy permitting or
authorizing meal or rest breaks because it considered its workers to be independent
contractors. Likewise, the undisputed evidence shows that defendants did not maintain
records of when the employees took meal breaks.
We agree with plaintiffs that these uniform policies (or lack of policies) could be
proved classwide. However, the proof on the remaining questions—the entitlement and
amount of the claimed damages—would be highly individualized. To recover damages
on a claim for a missed meal or rest break, the employee must have worked the required
amount of time, and have actually missed the meal or rest break. If an employee took a
rest break or a meal break, the employee cannot prevail on a claim that he or she is
entitled to compensation for a "missed" break. (See Brown v. Federal Express Corp.,
supra, 249 F.R.D. at pp. 586-587.) Although Networkers (by failing to maintain a break
policy and required records) would arguably have the burden to show the employees took
the required breaks (see Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727), the
evidence pertaining to this issue remained highly dependent on the work performed by
7 Some courts have held that under California law employers must make meal
breaks available to employees (Brown v. Federal Express Corp. (C.D. Cal. 2008) 249
F.R.D. 580, 587), while other courts have suggested (in dicta) that California law requires
employers to ensure that meal breaks are actually taken (see Cicairos v. Summit
Logistics, Inc. (2005) 133 Cal.App.4th 949, 962). The issue is currently under review by
the California Supreme Court. (See Brinker Restaurant Corp. v. Superior Court (2008)
165 Cal.App.4th 25, review granted Oct. 22, 2008, S166350; Brinkley v. Public Storage,
Inc. (2008) 167 Cal.App.4th 1278, 1287-1289, review granted Jan. 14, 2009, S168806.)

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each individual on each particular date, particularly given the nature of the work in which
each employee worked at numerous remote sites without any direct supervision.
Based on the submitted declarations, deposition testimony and payroll records,
there was substantial variations as to the hours worked by each employee and the breaks
taken by each employee on each particular date. For example, Jennings stated that the
"travel time to the sites varied and could be as little as 15 minutes or as long as [two to
three] hours," and although he stated that he was "forbidden to leave the site" once he
began working on the equipment, he did not state that he was always precluded from
meal and/or rest breaks while at a site. An employer is not necessarily required to permit
an employee to leave the premises to take a rest or meal break. Further, although each of
the other declarants stated that they frequently could not take meal or rest breaks if a job
took a long time, there was no basis to find how often this occurred with respect to each
worker. The declarants stated that they typically had about 25 to 30 assignments each
day, and that "[o]nce at the site to perform the repairs," they were "not permitted to leave
the site until the problem was fully resolved . . . ." However, these declarants
acknowledged that the jobs did not always take a long time, they were frequently alone at
the sites, and would often stop at a fast food restaurant between jobs on any particular
day. Although several declarants said they would eat in their cars on the way to their
next job, the trial court could reasonably conclude that this evidence would be subject to
various interpretations based on the specific employee and situation.
Based on the submitted evidence, there was a reasonable factual basis for the court
to conclude that not all workers had missed meal and rest breaks, and that the issue of

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which employees had missed breaks and how many breaks were missed and whether
those missed breaks were the result of Networkers' lack of a break policy was highly
dependent on the testimony of each plaintiff, essentially requiring a mini-trial on each
plaintiff's case to determine the amount of damages to which each plaintiff would be
entitled. On this record, the court did not err in concluding that a class action would not
be advantageous for the class members or for the judicial system. (See Brown v. Federal
Express Corp., supra, 249 F.R.D. at p. 587 ["the resources that would be expended on
determining the reason for the missed breaks would exceed those saved by classwide
determination of the number of breaks missed"].)
Plaintiffs argue that the evidence showing they could not take the required breaks
was common to all class members because it was based primarily on Networkers'
"upstream" contracts, i.e., Networkers' contracts with the telecommunications companies.
They say that provisions in each of these contracts established that the workers were
required to respond immediately to certain critical issues at the cell sites, which
effectively prohibited the class members from leaving the cell site until the assignment
was completed.
Even assuming the upstream contracts support these assertions, there was a
reasonable basis for the trial court to reject plaintiffs' argument. The provisions of the
upstream customer contracts do not show whether all class members were assigned to
jobs that took more than four or five hours, and how often they were assigned to these
type of jobs. According to plaintiffs' evidence, plaintiffs were routinely assigned to 25 or
30 "trouble tickets" per day. This evidence is inconsistent with a conclusion that each

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class member was routinely compelled to remain at a site for more than four or five
hours. Further, the evidence did not show that the fact that a class member could not
leave a cell site until the repair was completed necessarily meant the workers could not
take a meal or rest break while at the site.8
3. Remaining Claims
In addition to their causes of action for failure to pay overtime wages and
violations of meal and rest break laws, plaintiffs also brought claims for: (1) failure to
furnish accurate wage statements; (2) failure to keep accurate payroll records; (3) waiting
time penalties; and (4) unfair business practices. Because each of these claims was based
on plaintiffs' overtime and/or meal-and-rest break claims, the court did not err in
similarly denying class certification of these claims.
D. Conclusion
Although the independent contractor issue appears amenable to class treatment,
the court did not abuse its discretion in refusing to certify the class based on its
conclusion that the common issues would not predominate on the damage issues and that
a class action would not be an effective or efficient means of resolving class members'
claims. In reviewing a class certification ruling, we must presume every fact in favor of
the order and uphold the order unless the court's conclusion was "irrational." (Sav-On,
supra, 34 Cal.4th at p. 329.) Applying this standard, we cannot say it was irrational for
8 In this respect, this case is unlike Bufil v. Dollar Financial Group, Inc., supra, 162
Cal.App.4th at pages 1205-1206, in which the court found the employer's policies
specifically prohibited the employees from taking the required breaks, and there was no
evidence the employees violated this policy and did in fact take the breaks.

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the court to conclude that a class action was not appropriate because individual factual
questions on claims of missed meal and rest breaks and overtime pay (and related
underreporting issues) would predominate over common questions. It is not our role to
disturb the court's ruling even if the record can also support a contrary conclusion based
on other reasonable inferences. (Id. at p. 331.)
DISPOSITION
Order affirmed. Appellants to bear respondent's costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
MCDONALD, J.

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