Estrada v. Rps, Inc.
| Decision Date | 13 January 2005 |
| Docket Number | No. B173446.,No. B169675.,No. B172164.,B169675.,B172164.,B173446. |
| Citation | 23 Cal.Rptr.3d 261,125 Cal.App.4th 976 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Anthony ESTRADA et al., Plaintiffs and Appellants, v. RPS, INC., Defendant and Respondent. |
Lynn Rossman Faris, Oakland, Beth Ann Ross, San Francisco, Philip C. Monrad, Leonard Carder; Patten, Faith & Sandford, Jules Sandford and Lorraine Grindstaff, Monrovia, for Plaintiffs and Appellants.
Seyfarth Shaw, James M. Nelson, Alfred L. Sanderson and Diana L. Rachal, Sacramento, for Defendant and Respondent.
This is a class action in which the class was conditionally certified, subject to responses to questionnaires approved by the court and sent to the tentatively certified class. Some potential members did not respond at all, others provided inadequate responses, and all of those people were dismissed from this action. Meanwhile, the named plaintiffs and those who did respond to the questionnaires proceeded to trial, established liability, and are now in the midst of the damages phase of their bifurcated trial. At the same time, the named plaintiffs, purportedly acting on behalf of the dismissed class members, have appealed from the dismissal orders. There are two ways to view the dismissal orders — as orders pertaining to class certification, or as discovery sanction orders. If they are class certification orders, the named plaintiffs have standing to appeal but the orders are not appealable; if the dismissals are discovery sanctions, the orders are appealable but the named plaintiffs have no standing. Because we view all of the dismissal orders as part and parcel of the certification process, we conclude the named plaintiffs have standing to appeal but the orders are not appealable. We therefore dismiss these consolidated appeals as premature.
Anthony Estrada, a former driver for RPS, Inc., sued RPS for alleged unfair business practices (Bus. & Prof.Code, § 17200 et seq.), alleging — on behalf of himself and all persons who worked as contractors for RPS under the terms of the company's "Pick-Up and Delivery Contractor Operating Agreement" — that RPS unlawfully classified its pick-up and delivery drivers as "independent contractors" rather than "employees" and, as a result, failed to reimburse them for employment-related expenses.1 Estrada sought reimbursement (Lab.Code, § 2802), restitution, an accounting, and injunctive and declaratory relief.
In November 2000, the trial court (Commissioner Bruce E. Mitchell) tentatively and conditionally granted Estrada's motion for class certification but further briefing and several hearings occurred before the class was defined and the notice to class members approved.
In May 2001, the class was tentatively defined to include (1) contractors (2) who actually drove a truck (3) in a single service area (4) during the class period. When RPS explained that it had a list of contractors but no records confirming which contractors actually drove a truck (as opposed to those who hired others to drive), Class Counsel proposed that notice be sent to an admittedly over-inclusive group of contractors who worked a single service area during the class period. The court accepted that approach, subject to the use of a questionnaire or other post-certification discovery mechanism to determine the identity of the contractors who also drove.
In July, the court added an additional qualifier — that the contractors drove "full-time (excluding time off for vacations and illness)." In response to RPS's request for a more specific definition of "full-time," the court reiterated its ruling that "this certification is going to be conditional," that "post-certification discovery" would be used "to winnow ... out" contractors who were not "full time" drivers, and that RPS could move to decertify the class or dismiss those who did not qualify. On August 1, using RPS's list of contractors who worked a single service area during the class period, Class Counsel (while admitting this group would be overly inclusive, and conceding there would have to be "some winnowing" by the use of a questionnaire) insisted the list would provide a "reasonably accurate rough cut list" of class members.
On August 2, the trial court certified Estrada's Labor Code reimbursement claim for class treatment, finding there were common issues (whether class members were RPS "employees," and whether various expenses were "necessarily incurred"), and that class certification was not rendered inappropriate simply because "each class member [would] ultimately have to prove the amount of [his or her own] expenses."2
On the same day the class was certified, the trial court signed and filed the notice to be given to the "plaintiff class of pendency of class action and exclusion rights." The notice included the class definition as stated in the certification order (fn.2, ante) and then advised the potential class members of their "three choices" if they wanted to protect their legal rights:
RPS gave Class Counsel a list of the contractors (names, addresses, telephone numbers, and social security numbers) and Class Counsel sent the approved notice to everyone on that list (plus some additional contractors included on a supplemental list provided by RPS). After the opt-out period expired, the trial court accepted a certified list of about 700 class members.
Because of the undefined "full-time" qualifier, the parties were unable to agree "on a final class list and procedures for further class management," and RPS sought approval of a proposed questionnaire to be sent to the class members to determine "how often each contractor hired others to drive" as opposed to driving personally, and to inquire (and request documents) about the amount of each contractor's actual expenses. At a hearing held in February 2002, the trial court divided the proposed questions into two sets, Questionnaire One (Q1) and Questionnaire Two (Q2). Although Class Counsel "did not acquiesce" in the decision to send the questionnaires, they were active participants in drafting and refining the questions into "a more user-friendly format" (as the trial court described the ultimate questions). Everyone understood the questionnaires were, in substance if not form, interrogatories.
During March, April and May 2002, Class Counsel sent Q1 to all 700 class members. A cover letter from Class Counsel explained the questionnaire this way:
The questionnaire itself bears the caption of the case and is plainly a court document. It begins with a "Notice to Class Members" that includes the following warnings:
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