Kizer v. Tristar Risk Mgmt.

221 Cal. Rptr. 3d 207, 13 Cal. App. 5th 830, 2017 Cal. App. LEXIS 644
CourtCalifornia Court of Appeal, 5th District
DecidedJune 26, 2017
DocketG052558
StatusPublished
Cited by15 cases

This text of 221 Cal. Rptr. 3d 207 (Kizer v. Tristar Risk Mgmt.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kizer v. Tristar Risk Mgmt., 221 Cal. Rptr. 3d 207, 13 Cal. App. 5th 830, 2017 Cal. App. LEXIS 644 (Cal. Ct. App. 2017).

Opinion

ARONSON, J.

*833Plaintiffs and appellants Valerie Kizer and Sharal Williams (collectively, Plaintiffs) filed this putative class action against their former *834employer, defendant and respondent Tristar Risk Management (Tristar), alleging Tristar failed to pay Plaintiffs and its other claims examiners overtime compensation because it misclassified them as exempt from California's overtime laws.

After twice continuing the hearing for supplemental briefing and evidence, the trial court denied Plaintiffs' class certification motion because they failed to present substantial evidence showing their claims were typical of the proposed class and common issues of law or fact predominated. The court found Tristar's alleged misclassification of the proposed class members suitable for class treatment, but it denied the motion because misclassification does not give rise to liability on an overtime claim unless the employees first show they worked hours or days that required overtime compensation. The court explained Plaintiffs failed to present evidence showing Tristar had a generally applicable policy or practice that required employees to work overtime, and therefore Plaintiffs failed to show they could establish Tristar's liability based on proof common to all class members. Consequently, the court concluded class treatment of Plaintiffs' claims was not appropriate.

Plaintiffs contend the trial court erred because the amount of overtime worked by the individual class members is a damages *212issue, and the need for individual proof of damages is not a proper basis for denying class certification. Plaintiffs, however, misconstrue the governing legal standards and the basis for the court's ruling.

The trial court did not deny the motion based on Plaintiffs' failure to show the amount of overtime worked by each putative class member. Rather, the court denied the motion because Plaintiffs failed to show whether the putative class members worked any overtime at all was subject to common proof. To satisfy the commonality requirement for class certification, Plaintiffs were required to show they could establish their liability theory on a classwide basis through common proof. Typically, in overtime claims, plaintiffs show this by presenting evidence of an employer policy or practice that generally required the class members to work overtime. Plaintiffs presented no evidence of any such policy or practice.

Plaintiffs also contend the trial court erred in refusing class certification on their claim under California's unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq. ). According to Plaintiffs, the UCL authorizes restitution and other relief without a showing that each class member individually suffered injury, and therefore Plaintiffs were not required to present evidence of the overtime amount each putative class member worked. Plaintiffs again misconstrue the governing law. The cases Plaintiffs cite address standing to bring a UCL claim; they do not address the showing required to obtain class *835certification. As explained below, the governing case law makes clear that, aside from standing, a plaintiff seeking class certification on a UCL claim still must establish common issues of law or fact predominate, the representative's claim is typical of the class, and all other elements required for class certification. Because substantial evidence supports the court's decision Plaintiffs failed to make that showing, we affirm the court's decision to deny class certification.

I

FACTS AND PROCEDURAL HISTORY

Tristar provides third party risk management services, including claims adjusting and administrative services, with specialization in handling worker's compensation and general liability claims. Tristar's California clients include privately held, self-insured companies, publicly traded companies, and public entities, such as cities and counties. Tristar maintains branch offices in nine cities throughout California. Each branch typically is staffed with a branch manager, claims supervisors, administrative staff, and claims examiners I, II, and III.

Under Tristar's standardized "Position Description," the job duties and responsibilities for its claims examiners include managing a caseload of 150 to 180 worker's compensation files, investigating and fixing claims, managing medical treatment and billing, setting reserves, settling and finalizing claims, documenting all actions, and communicating with clients and claimants. Claims examiners typically work on claims for one client at a time, and the guidelines, protocols, rules, and expectations for managing the claims vary from client to client. Claims supervisors review files and supervise the work of claims examiners under standardized policies and procedures to ensure the claims examiners follow the necessary procedures and meet deadlines. Tristar's normal work schedule for claims examiners required them to work 7.5 hours per day, but Tristar also offered several alternative work schedules that allowed claims examiners to work 8.33 or 8.5 hours per day in exchange for receiving every other Monday or Friday off. Most *213claims examiners elected to work under one of Tristar's alternative work schedules.

Kizer worked for Tristar as a claims examiner III from February 2011 to January 2014, and Williams worked for Tristar as a claims examiner II from April 2006 to January 2014. In February 2014, Plaintiffs filed this putative class action against Tristar alleging it misclassified them and other similarly situated claims examiners as exempt from California's overtime laws. According to Plaintiffs, Tristar required its claims examiners to work more than eight hours a day and 40 hours per workweek, but paid no overtime because *836it classified them as exempt under California law. The complaint alleges claims for (1) UCL violations, (2) failure to pay overtime compensation ( Lab. Code, §§ 510, 1194, 1198 ), (3) failure to provide itemized wage statements ( Lab. Code, § 226 ), and (4) failure to provide wages when due ( Lab. Code, §§ 201, 202, 203 ). Tristar filed an answer denying liability and asserting an affirmative defense based on the overtime exemption for administrative employees established by Industrial Welfare Commission wage order No. 4-2001. (See Cal. Code Regs., tit. 8, art. 4, § 11040, subd. 1(A)(2).)

In November 2014, Plaintiffs filed a motion to certify a class composed of " 'all individuals who are or previously were employed by [Tristar] as Claims Examiner[s] II and Claims Examiner[s] III in [Tristar's] Workers' Compensation Division between February 25, 2010 and December 31, 2014.' "1 Plaintiffs argued class certification was appropriate to determine their claim that Tristar had a uniform policy of misclassifying its claims examiners as exempt under wage order No. 4-2001.

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Bluebook (online)
221 Cal. Rptr. 3d 207, 13 Cal. App. 5th 830, 2017 Cal. App. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kizer-v-tristar-risk-mgmt-calctapp5d-2017.