Sotelo Decision Is Packed With Class Action Goodness

A First Appellate District decision from May 31, 2012, Sotelo v. Medianews Group, Inc.; was published yesterday. The opinion contains an in-depth discussion on class action concepts arising out of a case alleging misclassification of newspaper carriers as independent contractors. The opinion cuts back on some pro-certification precedents, sets forth some anti-certification law for independent contractor cases, and contains some interesting observations about class certification in general.

Background Facts and Procedural Posture of Case

This was a newspaper carrier independent contract ("IC") misclassification case. The proposed class consisted of people whom the defendant newspaper had hired as ICs to insert advertisements into newspapers, fold and bag newspapers, deliver newspapers to subscribers, and/or supervise others who performed those tasks. The proposed class was broken into two groups: "carriers" who did the actual folding, bagging and delivering, and "distributors" who oversaw carriers' work. Approximately 5000 of these class members had signed common independent contractor agreements with defendant. Many of them also subcontracted to others to perform some of the "carrier" duties that they had contracted. Furthermore, many of them had relationships with multiple newspapers, while others worked only for the defendant. The class members ran the gamut from an individual who folded/bagged/delivered himself, to ICs who subcontracted all the work to other ICs and employees and did no carrying at all. The proposed class focused on anyone who did carrier or distributor duties, so it was not limited just to the 5000 who signed the IC contract, but also to the people with whom they subcontracted.

Judge Steven Brick of the Alameda Complex Court denied class certification finding issues with ascertainability and predominance of common issues. Plaintiff appealed and the Court of Appeal affirmed. The decision analyzes in depth the ascertainability and commonality requirements for class certification in several ways.

Ascertainability

Ascertainability means the ability to determine who is in the class. Reaching back to Hicks v. Kaufman & Broad. 89 Cal. App. 4th 908 (2001), the case law in California on ascertainability has focused only on the ability of a class member who receives notice to determine whether he or she fits within the class definition. It has not addressed the situation where membership in the class definition turns on individualized disputed facts (federal law in this area is much better). The Court of Appeal noted that Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1 (2007), had held that...