FYI: A Pot-Dealing Child Sex Offender Is Not an Ideal Class Rep.

Payton v. CSI Elec. Contractors, Inc., No. B284065 (D2d2 Sept. 28, 2018)

The trial court in this wage-and-hour case denied class cert because: (1) individual questions predominated regarding whether class members actually received the rest breaks at issues; and (2) Plaintiff’s trial plan was insufficient; (2) Plaintiff, who had a non-class wrongful discharge claim and whose criminal record includes a sex offense against a minor, wasn’t an adequate class rep. The court further declined to let Plaintiff find a new rep because the case had already been pending for a long time and class cert was likely not going to happen in any event.

The Court of Appeal affirms. To show that common questions predominate in a wage and hour case, the plaintiff generally needs to show that the employer had some kind of unlawful class-wide policy. The policy here was an alleged practice of tacking a lawfully required afternoon break onto the workers’ lunch, and then declining to permit a true afternoon break to occur. Problem is, the evidence showed that lots of members routinely got the afternoon break. Plaintiff says these were “ad hoc” breaks, contrary to the policy. But the trial court was entitled to credit them as substantial evidence in support of its finding that no uniform policy existed.

Plaintiff’s trial plan was, essentially, “we’ll bifurcate liability and damages, with a special master to handle damages.” Plaintiff didn’t offer much detail. In particular, he didn’t explain how Defendant’s evidence that much of the class actually took the afternoon break would be accounted for. Without that, Defendant could be found liable as to class members who suffered no violation of the law. That’s a problem. The Court later notes that while it might not have been impossible to come up with a better plan, Plaintiffs aren’t generally permitted a do-over on class cert.

The trial court also didn’t err in finding Plaintiff inadequate. Plaintiff’s wrongful discharge claim threatened to create a major sideshow in a wage-and-hour trial on the class claims. In particular, his individual claim turned largely on his credibility. Which brought in play that Plaintiff had suffered felony convictions for a sex crime and for selling weed, but failed to disclose the latter on his job application.

Finally, although it’s generally a good practice to let the class find a new rep if the lead plaintiff is found inadequate, it’s not a per se rule. The rule is instead discretionary, akin to affording leave to amend. Under that standard, the futility of further amendment and any unreasonable delay in seeking it are relevant considerations. They are here too. It should have been evident during the the four years between filing and class cert, that Plaintiff’s felony convictions and the way they intertwined with his wrongful discharge claim could be a problem. But he never even tried to add a backup rep at any time in that window. Moreover, given the issues with predominance and the trial plain, adding another rep would likely be futile. 

Affirmed.