McCleery v. Allstate Ins. Co.

Opinion

 [**769]  CHANEY, Acting P. J.—In this putative class action, property inspectors allege they were engaged by three “service” companies to perform inspections [***2]  for two major insurers. The inspectors allege they were in fact employees of the insurers and service companies jointly, and were entitled to but deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements.

The inspectors moved for class certification, supported by their expert's declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members.

The trial court summarily rejected the expert's plan and denied certification on the ground that the inspectors had failed to show that their status as employees (as opposed to independent contractors) could be established on predominately common proof.

We reversed the order and remanded the matter with a direction, as pertinent here, to evaluate plaintiffs' proposed sampling plan. (McCleery v.  [*439] Allstate Ins. Co. (Feb. 5, 2016, B256374) [nonpub. opn.].) On remand, plaintiffs offered a trial plan describing their proposal to establish liability and damages by way of an anonymous survey of all class members. The trial court found common issues existed as to the [***3]  class members' employment status. It further found that plaintiffs' survey method, although flawed in some respects, was carefully crafted for accuracy. However, the court found plaintiffs' trial plan to be unworkable because it failed to address individualized issues and deprived defendants of the ability to assert defenses. The court therefore again denied certification.

Plaintiffs appeal, contending the trial court applied improper criteria and made incorrect legal assumptions.

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