Barriga v. 99 Cents Only Stores LLC, 2020 WL 3481717 (Cal. Ct. App. 2020)

Sofia Wilton Barriga filed this lawsuit against her employer, 99 Cents Only, alleging that the “zero-tolerance” policy requiring its stores to lock their doors at closing time forced nonexempt employees such as herself and those similarly situated to wait for as long as 15 minutes for a manager with a key to let them out of the store.  Plaintiff alleged that the zero-tolerance policy denies employees pay for the time they have to wait to be let out of the store, and it also denies some employees their full half-hour meal break.  In opposition to plaintiff’s motion to compel certification of two class actions, 99 Cents Only submitted 174 declarations from current and former nonexempt employees who declared that graveyard shift employees could leave the store immediately without waiting to be let out and that those employees who did have to wait were let out promptly and paid for the time they waited.  Only 53 of the 174 declarants were members of the putative class.  Plaintiff took the depositions of 12 of the declarants, and although most testified they understood what they were signing and did so freely and without coercion or promise of promotion or a pay raise, others testified they “had no idea what the lawsuit was about or even why they had been called upon to testify.”  Plaintiff moved to strike all 174 declarations on the ground that the process by which they were obtained was improper.  The trial court concluded it lacked the “statutory authority” to strike the declarations and denied plaintiff’s motion to strike and also the class certification motion.

The majority of the Court of Appeal panel reversed, holding that “California courts have recognized the trial court has both the duty and the authority to exercise control over precertification communications between the parties and putative class members to ensure fairness in class actions.”  The Court reversed the orders denying plaintiff’s motion to strike the declarations and the class certification motion.  In dissent, Justice Slough questioned why the Court had reversed the denial of the motion to strike the declarations, which plaintiff had not challenged, and further why the Court had not analyzed whether the denial of said motion prejudiced the outcome of the case:  “This is a first.  Every court that has found an abuse of discretion in an evidentiary ruling has gone on to determine whether the error was prejudicial to the trial court’s certification decision” (emphasis in original).