This decision affirms an order denying certification of a wage and hour class action brought by property inspectors against three service companies and the two insurance companies to which they provided inspection services. Plaintiffs claimed that they were not independent contractors but employees of all five defendants who were their joint employers and liable for not paying them minimum wages, overtime, affording them a meal and rest breaks and not reimbursing them for work-related travel expenses. Plaintiffs proposed to prove liability by means of an expert’s testimony based on a double-blind survey he conducted of a random sample of class members. The decision holds that even though common questions predominated, the plaintiffs’ proposed trial plan of relying on the expert and his survey was unmanageable, inadequate and unfair. The survey didn’t distinguish among defendants, so the fact that an inspector worked overtime without compensation during one day didn’t show he worked overtime for either of the two insurers, as he could have split time between them, or also worked for other insurers during that day. The same problem prevented plaintiffs from proving any one defendant’s liability for any of the other alleged Labor Code violations. Also, by anonymizing responses, plaintiffs unfairly insulated their survey from any meaningful examination. Their expert didn’t know who the survey respondents were, how reliable they were or why others chose not to respond. Defendants had the right to defend by impeaching the evidence against them, and the plaintiff’s survey method and reliance on expert testimony based solely on hearsay prevented defendants from doing so.
California Court of Appeal, Second District, Division 1 (Chaney, Acting P.J.); December 14, 2018; 30 Cal. App. 5th 223