First, I Assumed We Had a Theory...

Esparza v. Safeway, Inc., No. B287927 (D2d4 as modified June 28, 2019)

Having bobbed and weaved their way to get their class certified, Plaintiffs in this wage and hour case have a problem. Their class cert arguments were based on the idea that they did not need to show how many meal breaks were missed by each class member, since that would be subject to individual proof. Instead, they put up a theory that there was a “market value” to a job without a meal break and that that value was captured by Employer and thus a legit target for restitution under the UCL. It’s a less obvious theory than “I missed 42 meal breaks,” but it is at least theoretically more capable of classwide proof.

That is, until it comes time to prove it. 

In opposing summary judgment, Plaintiffs supported their theory with an expert declaration. The expert’s declaration discussed a hypothetical wherein with perfect information and perfect competition, and with all other things being equal, an employer that did not pay for break time would have to pay a higher hourly wage. That differential is what should be disgorged. So, said the expert, “it would be possible empirically to determine the value workers placed on an employer’s policy of paying meal period penalties.”

Problem is, the expert didn’t do any math to back his theory. Nor did he offer any methodology for making the calculation so. He just offered a high-level conceptual hypo. The trial court excluded the opinion, finding its analysis “tautological.” And without the testimony, Plaintiffs had no damages theory, so summary judgment was granted.

The Court of Appeal affirms. The declaration was properly excluded under the Sargon standard, whether under Evidence Code §§ 801 or 802. Under § 801(b), the expert didn’t demonstrate that he relied on material of a type an expert could permissibly rely. And under § 802 because he didn’t state adequate reasons. 

Affirmed.

For what it’s worth, § 801(a) which requires the opinion to “assist the trier of fact”—seems to also be an adequate grounds for exclusion. (This is the state equivalent for the “fit” element of the federal Daubert test.) An opinion is so high level and vague and assumes a perfect hypothetical world that doesn’t comport with reality would be of no real value in helping the trier of fact to assess the Plaintiffs’ damages.