Bell v. Farmers Insurance Exchange (115 Cal. App. 4th 715, 2004)

Opinion

SWAGER, J.

In this class action for unpaid overtime, Farmers Insurance Exchange (FIE) has filed separate notices of appeal from a judgment awarding the plaintiffs’ class $90,009,208.12 for unpaid overtime compensation, plus prejudgment interest of $32,303,048 and from a series of postjudgment orders that inter alia adopted a plan of distribution and awarded common fund attorney fees and costs. We reverse the portion of the judgment for unpaid double-time hours worked, and remand the order re plan of distribution. In all other respects the judgment and postjudgment orders are affirmed.

PROCEDURAL BACKGROUND

1. Early Procedural History

The plaintiffs are former or current claims representatives working for FIE in California who brought this action on behalf of themselves and other claims representatives employed in a similar capacity. Their complaint filed October 2, 1996, and amended two months later alleges that FIE followed the practice of refusing to pay overtime compensation to claims representatives on the ground that they were employed in an administrative capacity and therefore exempt from the overtime pay regulations of the California Industrial Welfare Commission. The plaintiffs sought unpaid overtime compensation under Labor Code section 1194 for a period beginning on October 1, 1993, and continuing until trial, as well as injunctive relief to assure future compliance with state overtime regulations.

After extensive discovery, plaintiffs filed a motion for class certification supported by depositions of prospective class members and other evidence. Granting the motion in an order filed May 28, 1998, the trial court found that the class was “so numerous as to make it impracticable to join all members,” there were “questions of law and fact common to the class,” plaintiffs were representative of the class, and a class action was “superior to other available methods for the fair and efficient adjudication of the controversy.” The order defined the class as consisting of claims representatives working for FIE’s Personal Lines Division in California during the relevant period, who were assigned to handle property, automobile physical damage, and liability claims.

FIE sought review of the order certifying the class in an earlier appeal, which we dismissed as procedurally improper.

Plaintiffs effectively sought an adjudication of FIE’s liability in a motion for summary adjudication of the exempt or nonexempt status of the class members. In an order filed April 21, 1999, the trial court rejected FIE’s claim that the claims representatives were employed in an exempt administrative capacity and ruled that the class was subject to the overtime regulations of the Industrial Welfare Commission. The court found that claims adjusting was “a product or service which FIE’s operation exists to provide” and that claims representatives “devote their time to carrying out [this] product/service as opposed to its ‘administrative’ functions.”

The trial court subsequently awarded the plaintiffs interim attorney fees on a finding that they had “prevailed on liability issues.” Appealing from this award, FIE challenged the adjudication of nonexempt status as a predicate for the attorney fee award and questioned the trial court’s statutory authority to award interim attorney fees. In our decision in Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805 [105 Cal.Rptr.2d 59] (hereafter Bell II), we upheld the trial court’s ruling that plaintiffs were nonexempt employees but reversed the interim award of attorney fees on separate statutory grounds.

2. Contested Class Certification

On September 22, 1999, approximately six months after the summary adjudication of nonexempt status, FIE moved for “an order granting declaratory judgment as requested by plaintiffs . . . , decertifying the class and issuing an injunction requiring individual class members to commence administrative proceedings before the Labor Commissioner for a determination of individual damage claims.” FIE argued that damages could best “be litigated on an individual basis” in an administrative proceedings pursuant to Labor Code section 98. Opposing the motion, plaintiffs relied in part on the rule that class decertification must be based on a showing of changed circumstances. The trial court denied the motion on this basis, finding “no changed circumstances rendering class certification no longer proper.”

FIE next moved for the court to issue a second notice of pendency of action, both to employees who received the original notice mailed in July 1998 and those who were hired thereafter, which would give employees an opportunity to opt out of the class. The trial court ordered the notice, with a request for exclusion from the class, to be sent only to new employees who had not received the first notice. Approximately 5 percent of the class ultimately chose to opt out of the class action.

On May 24, 2001, less than a month before trial, FIE moved again to decertify the class on the ground that the recently completed depositions of the statistical sample of class members revealed that 9 percent of the class members did not claim unpaid overtime compensation. The trial court denied the motion on the ground that the inclusion of these employees in the class did not prejudice FIE and “judicial economy is served” by denying the motion.

3. Trial Management Rulings

Following the adjudication of the plaintiffs’ nonexempt status, the parties submitted to the court a series of proposals and counterproposals for management of the damages-phase trial, which led to an initial ruling entered April 28, 2000, that set the context for later pretrial rulings. In status conference statements filed in 1999, plaintiffs proposed to prove class-wide aggregate damages by statistical sampling. FIE took the “position that damages recoverable by each class member must be tried on an individual basis” and announced an intention to take an initial 52 depositions of an estimated 2,500 individuals in the class.

By February 2000, both parties were assisted by statisticians—plaintiffs retained Richard Drogin and FIE retained Roy Weinstein. Plaintiffs submitted a proposed trial management plan for a scheduled hearing on April 21, 2000, supported by a declaration of Richard Drogin, which proposed statistical sampling to achieve a one-hour-per-week margin of error with a “confidence interval” of 95 percent. He calculated that a sample of 95 employees would be necessary to achieve this level of accuracy. In response, FIE called for “individual mini-trials,” but, if they were not allowed, it proposed a sampling plan based on the same 95 percent confidence interval but designed to achieve a half-hour-per-week margin of error. Its statistician, Roy Weinstein, calculated that a sample of 1,325 employees would be required.

In reply, plaintiffs noted that the wide variation in estimated class size reflected different assumptions about the variability of the data. They proposed a two-stage plan. The parties would first conduct a pilot random sample of 50 class members to refine their assumptions as to the variability of the data, and then seek rulings on the appropriate margin of error and the size of the employee sample. Generally accepting this methodology, Weinstein filed a supplemental declaration shortly before the hearing on April 21, 2000, that characterized the plaintiffs’ proposal as “reasonable.” At the hearing itself, the parties announced an agreement on the initial step of taking depositions of a randomly chosen sample of 50 individuals.

The order following the hearing filed April 28, 2000, provided that “[tjhe damages-phase trial” would “determine classwide aggregate damages” by extrapolating from “a representative sampling of class members.” The order directed depositions of “an initial pilot sample of 50 randomly selected class members” and appointed a special master to resolve any disputes concerning these depositions. The court directed a target date for completion of these depositions and asked for the submission of a joint report of their experts. The order further directed the parties to “regularly meet-and-confer” following the depositions “in an attempt to reach agreement on the number of weekly overtime hours worked and/or the number of hours worked per week by each of the 50 deposed class members.”

Both parties filed status conference statements for a hearing on August 4, 2000. Plaintiffs proposed a margin of error of 1.5 overtime hours per week and FIE proposed a margin of error of 0.75 hours per week. In a joint declaration submitted for the hearing, the experts, Drogin and Weinstein, announced that they had “identified a range of sample sizes associated with different margins of error. A decision as to the appropriate margin of error for purposes of this litigation is left for the court’s discretion.” The margins of error ranged from one-half hour per week to two hours. Thus, a margin of error of 0.75 hours would call for a sample size of 529 and a margin of error of 1.5 hours would require a sample of 159. In either case, the results of the 50 depositions in the pilot sample could be deducted from the total number of individuals examined.

The experts’ calculations were made possible by the parties’ success in reaching agreement on work calendars reflecting the deposition testimony regarding work patterns of the 50 employees in the pilot sample. In addition, the parties “agreed upon a method [of] determining an appropriate measure for overtime hours worked” and calculated total overtime hours for each deponent. They then divided total overtime hours of all deponents by total weeks worked to arrive at “an estimate of average weekly overtime hours worked.”

At the August 4th hearing, the trial court suggested that the parties consider a one-hour weekly margin of error, which, according to the experts’ joint declaration, would require a total of 330 depositions. With the apparent agreement of the parties (see pp. 755-757, post), the court provisionally ordered 280 additional depositions to be taken, with this number to be reviewed after completion of 100 depositions.

Later in the year, Drogin and Weinstein filed a second joint declaration stating that they had reviewed the results of an additional 99 depositions (one transcript was not available) and calculated that a one-hour-per-week margin of error could be achieved with a sample size of only 286. Relying on the declaration, the trial court ordered an additional 136 depositions.

The parties ultimately exceeded this goal and deposed a total of 295 individuals. Remarkably, they reached agreement on work calendars reflecting the testimony of all deponents. (See p. 757, post.) The two experts both calculated that the average (or mean) weekly overtime recorded in the work calendars was 9.42 hours per week and they calculated the margin of error to be 0.9 hours per week, slightly better than originally contemplated.

FIE nevertheless argued that the sample was subject to varying interpretations. These differences in interpretation between plaintiffs and FIE framed the issues at trial.

4. Trial

In a brief jury trial, the plaintiffs presented only two expert witnesses, statistician Richard Drogin, and a certified public accountant, Paul Regan. FIE relied on a single witness, statistician Roy Weinstein.

Drogin recounted that, in early 2000, he began working with FIE’s expert, Weinstein, to develop a random sample for a statistical estimate of average overtime. He related the process of developing agreed work calendars for a sample of 295 employees and calculating overtime hours under California law. The parties reached virtually identical calculations of the total overtime hours in the sample, i.e., 438,000, and the total number of weeks the deponents worked within the class of claims representatives, i.e., 46,607. By simply dividing total overtime hours by total weeks, it could be calculated that the average weekly overtime was 9.42 hours—a figure that included 0.37 hours per week of work entitled to double-time compensation. Because the sample was representative of the population, Drogin testified that it was “statistically appropriate” to extrapolate the average number of overtime hours to the entire class. The margin of error for this extrapolation was plus or minus 0.9 of an hour per week, with a 95 percent level of confidence.

Regan testified that he secured FIE payroll records for all 2,402 class members for the period beginning October 1, 1993, and ending June 26, 2001. In a 625-page printout, he calculated overtime on a person-by-person basis using the average overtime figure of 9.42 hours per week and aggregated the individual calculations into a classwide total. He separately calculated unpaid overtime compensation reflecting time-and-a-half of base salary, overtime on bonus pay, and overtime reflecting a double-time rate of pay. The totals were $89,425,942, for time-and-a-half overtime, $1,265,255 for overtime on bonus pay, and $1,210,337 for double time. When Weinstein later offered a somewhat different interpretation of FIE’s payroll records in his trial testimony, Regan presented on rebuttal a revised calculation of $88,647,787 for time-and-a-half overtime on base salary, which gave effect to FIE’s interpretation of its records.

Through its expert witness, Weinstein, FIE presented a case for determining aggregate overtime on the basis of median weekly overtime of 7.27 hours. Weinstein offered two reasons for using the median figure rather than the mean which was used by Drogin. First, he maintained that the mean may be misleading when a sample includes extreme values, or outliers, deviating widely from other data. He stressed the variation in weekly overtime reported by the 295 deponents, including 11 employees who reported working an average of 26 hours or more of overtime. Secondly, he argued that the sample results were distorted upward by “response bias.” Some 36 claims representatives did not respond to deposition notices and subpoenas, forcing the parties to depose another group of 36 randomly selected class members. He inferred that those who responded to the notices felt more positively about the plaintiffs’ claims than those who failed to respond and therefore the substitution affected “the integrity of the original sample” by introducing an upward bias.

The case was submitted to the jury on the afternoon of July 9, 2001. The next day, the jury unanimously returned a special verdict finding that unpaid time-and-a-half overtime compensation owed to the class as a whole was $88,798,871.12 and unpaid double-time overtime compensation was $1,210,337. The former figure corresponded closely to Regan’s revised calculation of overtime on base salary but excluded overtime on bonus pay; the latter figure accepted Regan’s calculation of unpaid double-time compensation.

5. Posttrial Proceedings

Shortly after the jury verdict, plaintiffs proposed three options for a plan of distribution: (1) a distribution attributing the average weekly overtime hours to all employees and calculating individual payments solely on the basis of employment tenure and salary, (2) a distribution preceded by the mailing of claim forms requiring class members to say if they claimed “some” damages or none, and (3) a detailed claim form with an administrative proof-of-claims procedure. Plaintiffs argued that FIE had no standing to intervene in the plan of distribution. For its part, FIE called for the third option of an administrative proof-of-claims procedure.

Without directly ruling on FDE’s right to object, the trial court stated at a hearing on August 1, 2001, that it would allow FIE to comment on the plan of distribution as a matter of courtesy and directed the parties to meet and confer to resolve issues presented by the third option. In two later hearings, the plaintiffs developed a revised version of the third option reflecting FIE’s written objections and arguments.

On September 20, 2001, the court entered an order adopting plaintiffs’ revised plan of distribution, subject to certain further modifications. The plan provided for the distribution of a damages fund consisting of the award for unpaid overtime ($90,009,208.12), plus prejudgment interest, less costs and fees payable to class counsel as a percentage of the common fund and “service payments” to the five named plaintiffs compensating them for their efforts in bringing the action. Any statutory attorney fees and costs awarded under Labor Code section 1194 would be offset against attorney fees and costs payable from the common fund. The court entrusted administration of the plan of distribution to a claims administrator and retained jurisdiction to oversee its administration.

The plan provided that payments to the 295 employees in the random sample, as well as 48 additional employees deposed during the damages phase of the litigation, would be based on their deposition testimony of overtime hours worked. Other payments would be made only to those employees submitting proof-of-claim forms with statements of average weekly overtime hours worked. The payments would be based on these statements of overtime worked, as well as the wages and tenure of the employees as class members. The information regarding employees’ wages and tenure would be drawn from the FIE database and preprinted on the claim forms mailed to class members, who would be given an opportunity to challenge it. Any unresolved disputes would be referred to a special master.

In the event claims should exceed the net damages fund, the claims administrator would distribute to each class member a percentage of the fund equivalent to that class member’s claim share as a proportion of all class members’ claim shares. If claims should be less than the net damages fund, the judgment gave FIE a right to recover undistributed prejudgment interest but deferred a decision on any unpaid residue of the damages fund itself to a later proceeding under Code of Civil Procedure section 384.

A judgment filed on September 24, 2001, adopted by reference the plan of distribution. Two subsequent postjudgment orders addressed important aspects of the plan of distribution. First, on November 28, 2001, the court awarded to plaintiffs’ counsel attorney fees in the amount of 25 percent of the total damages fund recovered for the class, consisting of back pay and interest, plus expenses in the sum of $941,884.73. Secondly, on April 23, 2002, the court appointed a claims administrator and approved a claim form, with an accompanying background statement and claim form instruction.

The background statement accompanying the claim form explained that the employees were entitled to money under the terms of a judgment awarding damages for unpaid overtime compensation to claims representatives working for FIE in California. The amount of the damage fund was determined by deposing a representative sample of 295 employees regarding their overtime hours. The statement informed employees that the deposed employees worked an average of 9.42 overtime hours per week and set forth in a chart the precise numbers of employees reporting at intervals between zero to 38 hours of overtime, i.e., 39 employees worked between 4.01 and 6 hours of overtime, 35 between 6.01 and 8 hours, etc.

The instructions gave precise directions on how to calculate overtime hours worked. The estimate of weekly overtime hours worked was to be based on the employee’s “best recollection, but it need not be precise if [the employee did] not have precise records or recollections.” By signing the claim form, the employee was “declaring under penalty of perjury” that the information provided was correct to the best of his or her knowledge.

DISCUSSION

A. Law of the Case

In its first assignment of error, FIE urges that we reconsider our decision in the prior appeal in light of “[r]ecent developments in federal law.” As FIE recognizes, the reconsideration of a prior appeal is ordinarily precluded by the law-of-the-case doctrine. “Under this doctrine, ‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301-302 [253 Cal.Rptr. 97, 763 P.2d 948]; see also Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97-100 [3 Cal.Rptr. 3d 365].) The law of the case, however, is a procedural rule that is subject to certain exceptions. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291 [265 Cal.Rptr. 162, 783 P.2d 749].)

“The principal ground for making an exception to the doctrine of law of the case is an intervening or contemporaneous change in the law.” (Clemente v. State of California (1985) 40 Cal.3d 202, 212 [219 Cal.Rptr. 445, 707 P.2d 818].) The exception is limited to changes in “the controlling rules of law.” (Salazar v. Eastin (1995) 9 Cal.4th 836, 859 [39 Cal.Rptr.2d 21, 890 P.2d 43], italics added; DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179-180 [18 Cal.Rptr. 369, 367 P.2d 865].) As explained in Gore v. Bingaman (1942) 20 Cal.2d 118, 123 [124 P.2d 17], “the rule should never be made the instrument of injustice. Thus, where the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held that the court will not hesitate to reconsider its prior determination.” (See also Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 530 [82 Cal.Rptr.2d 739]; Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 759-760 [33 Cal.Rptr.2d 137].)

FIE predicates its claim of an intervening change in the controlling rules of law on an opinion letter of the Administrator of the Department of Labor’s Wage and Hour Division, two appellate court decisions and one district court decision arising from the Ninth Circuit (Bothell v. Phase Metrics, Inc. (9th Cir. 2002) 299 F.3d 1120; Webster v. Public School Employees of Washington (9th Cir. 2001) 247 F.3d 910; Palacio v. Progressive Ins. Co. (C.D.Cal. 2002) 244 F.Supp.2d 1040), and two other federal district court decisions (Jastremski v. Safeco Ins. Companies (N.D.Ohio 2003) 243 F.Supp.2d 743; Schaefer v. Indiana Michigan Power Co. (W.D.Mich. 2002) 197 F.Supp.2d 935). To assess the significance of these authorities, we must first review our prior decision.

In Bell II, we upheld the trial court’s summary adjudication that claims representatives working for FIE’s Personal Lines Division in California were not exempt from the overtime pay requirements of the Industrial Welfare Commission’s wage order No. 4, codified in California Code of Regulations, title 8, section 11040, subdivision 1(A). Our analysis proceeded in four steps. First, we construed the exemption as requiring an employer to prove both that an employee is employed in an “administrative capacity” and that the employee is “ ‘engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment.’ ” (Bell II, supra, 87 Cal.App.4th 805, 810-812.) Secondly, we concluded that federal authorities construing parallel provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq. (ELSA)) were relevant to construing the exemption provision of wage order No. 4. (Bell II, supra, at pp. 812-819.) Thirdly, we found that a core concept appearing in the federal interpretative regulations and decisional law—the administrative/production worker dichotomy—provided a useful approach to determining whether an employee worked in an “administrative capacity” as required by the exemption provision of wage order No. 4. (Bell II, supra, at pp. 819-823.) Fourthly, we found that the evidence submitted on the motion for summary adjudication compelled the conclusion that the plaintiff employees were production workers within the meaning of the administrative/production worker dichotomy and, on that ground, we held that they were not employed in an administrative capacity within the meaning of the exemption of title 8, section 11040, subdivision 1(A). (Bell II, supra, at pp. 823-829.)

In this appeal, FIE primarily directs its argument at the third and fourth parts of the opinion. The analysis in the third section of the opinion evolved from our prior conclusions that the Industrial Welfare Commission (IWC) intended the term “administrative capacity” to have an independent meaning and that the parallel provisions of federal law could provide guidance in determining that intended meaning. We noted that federal interpretative regulations relating to the term “administrative capacity” could be grouped into those relating to “the role of administrative employees in a business enterprise, the actual duties of the employees, and the employees’ level of remuneration.” (Bell II, supra, 87 Cal.App.4th 805, 819.) Of these three approaches, it was the body of federal interpretative law dealing with the employee role in the business enterprise that served to give the term “administrative capacity” a meaning independent of other language in title 8, section 11040, subdivision 1(A). A central concept in this body of interpretative law is the administrative/production worker dichotomy.

The administrative/production worker dichotomy draws on 29 Code of Federal Regulations (hereafter C.F.R.) part 541.2 (2003), which defines the statutory phrase “administrative capacity” as referring to an employee whose primary duty consists of “work directly related to management policies or general business operations of his employer . . . .” (See also § 541.214(a).) As elucidated in part 541.205(a), this language calls for a distinction between “those types of activities relating to the administrative operations of a business as distinguished from ‘production’ or, in a retail or service establishment, ‘sales’ work.”

This dichotomy suggested by 29 C.F.R. part 541.205(a) has become a generally accepted framework of analysis in the decisional law construing the statutory term “administrative capacity” in the FLSA. The cases distinguish between “ ‘those employees whose primary duty is administering the business affairs of the enterprise from those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce and market.’ ” (Bell II, supra, 87 Cal.App.4th 805, 821, citing Dalheim v. KDFW-TV (5th Cir. 1990) 918 F.2d 1220, 1230, fn. omitted.) Thus, in Reich v. Chicago Title Ins. Co. (D.Kan. 1994) 853 F.Supp. 1325, 1330, the court “examined the duties of the plaintiff escrow closers ‘to determine whether they carry out Chicago Title’s day-to-day operations [as production workers] ... or whether they administer the business affairs . . . [of the company as administrative workers].’ ” (See Bell II, supra, at pp. 822-823.)

The fourth section of our opinion in Bell II reviewed the evidence concerning the work of claims representatives in the California branch claims offices of FIE’s Personal Lines Division. We concluded; “the undisputed evidence places the work of the claims representatives squarely on the production side of the administrative/production worker dichotomy. The undisputed evidence establishes that claims adjusting is the sole mission of the 70 branch claims offices where plaintiffs worked. The claims representatives are fully engaged in performing the day-to-day activities of that important component of the business.” (Bell II, supra, 87 Cal.App.4th 805, 826.)

Turning to the propriety of the summary adjudication, we noted that “the administrative/production worker dichotomy is a somewhat gross distinction that may not be dispositive in many cases.” (Bell II, supra, 87 Cal.App.4th 805, 826.) While federal interpretative regulations served to elucidate and qualify the distinction, there are no comparable interpretative regulations governing IWC work orders. Accordingly, we stressed “that California courts must use great caution in granting summary judgment or summary adjudication on the basis of such a broad distinction as the administrative/production worker dichotomy.” (Id, at p. 827.) Nevertheless, we found that the evidence in the record before us was sufficiently clear to justify the trial court’s summary adjudication. Our opinion in Bell II was based on the restricted record before us and cannot be read out of that context.

The record showed that the claims representatives processed “a large number of small claims” and, according to FIE’s own characterization, their duties were restricted to “ ‘the routine and unimportant.’ ” (Bell II, supra, 87 Cal.App.4th 805, 827-828.) We concluded that these work activities “place[dj plaintiffs in the sphere of rank and file production workers” in this part of the FIE business organization. (Bell II, supra, at p. 828.) Our conclusion obviated the need to inquire whether the employees’ duties came within the criteria of subdivision 1(A)(1) of wage order No. 4, “that is, whether the plaintiffs are ‘engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment’ . . . .” (Bell II, supra, at p. 828.)

We find nothing in Webster v. Public School Employees of Washington, supra, 247 F.3d 910, and Bothell v. Phase Metrics, Inc., supra, 299 F.3d 1120, that is inconsistent with our decision. The decisions both pursued the administrative/production worker dichotomy as a generally accepted framework of analysis, but the factual situations in the two cases did not easily lend themselves to this customary analysis.

In Webster, the plaintiff was a field representative for a public employees’ union. Seeking to put himself on the production side of the dichotomy, he argued that he assisted in performing the primary service goal of the unions—the negotiation of collective bargaining units. The court observed that the purpose of the dichotomy is to clarify the meaning of “ ‘work directly related to the management policies or general business operations’ ” as found in 29 C.F.R. part 541.2. (Webster v. Public School Employees of Washington, supra, 247 F.3d 910, 916.) The dichotomy would defeat the purpose of the administrative exemption if it were applied to work units carrying out management functions. Following Bratt v. County of Los Angeles (9th Cir. 1990) 912 F.2d 1066, the court found that the plaintiff was an exempt administrative employee because his primary duty involved advising the bargaining units how to conduct their business. (Webster v. Public School Employees of Washington, supra, at pp. 916-917.)

In Bothell, the plaintiff was a field service engineer for one of his employer’s largest customers. He claimed to be a repairman; his employer characterized him as an account executive. Applying the administrative/production worker dichotomy, the district court granted summary judgment on the ground that the job was “ancillary” to his employer’s main activities and therefore did not fall on the production side of the dichotomy. The appellate court observed that the dichotomy “is useful only to the extent that it helps clarify the phrase ‘work directly related to the management policies or general business operations.’ [Citation.]” (Bothell v. Phase Metrics, Inc., supra, 299 F.3d 1120, 1126.) But “[ojnly when work falls ‘squarely on the “production” side of the line,’ has the administration/production dichotomy been determinative.” (Id. at p. 1127, fn. omitted.) Remanding the case to the district court for trial, the court held that the plaintiff’s status called for a “fact-specific inquiry” into the plaintiff’s work activities. (Id. at p. 1128.)

Webster and Bothell underscore our observations in Bell II that “the administrative/production worker dichotomy is a somewhat gross distinction that may not be dispositive in many cases.” (Bell II, supra, 87 Cal.App.4th 805, 826.) But the decisions do not draw into question our use of the dichotomy under the specific facts of the present case. The work at issue here falls “ ‘squarely on the “production” side of the line’ ” (Bothell v. Phase Metrics, Inc., supra, 299 F.3d 1120, 1127); it places the plaintiffs in a broad category of rank and file workers carrying out the service that an important component of the FIE business organization exists to provide.

In Palacio v. Progressive Ins. Co., supra, 244 F.Supp.2d 1040, the federal district court reached a result different from Bell II, but pursued the same mode of analysis and distinguished the facts of the case from those in Bell II. The plaintiff, a claims adjuster for an automobile insurance company, brought actions for unpaid overtime compensation under the FLSA and wage order No. 4 of the California Industrial Welfare Commission. The court granted summary judgment for the employer under the ELSA, but denied the motion for summary judgment under wage order No. 4, relying on the authority of Bell II.

In deciding the ELSA claim for the employer, the court analyzed the case in terms of the administrative/production worker dichotomy but found that plaintiff’s job came within the employer’s administrative operations as defined in 29 C.F.R. part 541.205(b) (“The administrative operations of the business include the work performed by . . . employees engaged in ‘servicing’ a business as, for example, advising the management, . . . negotiating, representing the company . . .”).

Turning to the state claim, the court noted that, in applying the administrative/production worker methodology, Bell II reached an opposite conclusion “upon considering somewhat similar circumstances.” (Palacio v. Progressive Ins. Co., supra, 244 F.Supp.2d 1040, 1050.) But the court did not question the authority of Bell II under state law and observed that it presented distinguishable facts. In particular, “claims handling [in Bell II] constituted the insurance company’s business” (id. at p. 1050) and the employer restricted the claims representatives to “routine and unimportant” duties. (Ibid.) In the court’s view, the similarity and differences between the cases revealed a triable issue of fact under state law.

FIE relies on another federal district court decision, Schaefer v. Indiana Michigan Power Co., supra, 197 F.Supp.2d 935, which has no factual similarity to the present case. The plaintiff was an environmental specialist at a nuclear power plant and was engaged in supervisory and policy-formulation work, analogous to the kind of work that Bell II expressly notes that plaintiffs did not perform. (Bell II, supra, 87 Cal.App.4th 805, 823, 828.) The Schaefer holding that the plaintiff was an exempt employee is entirely consistent with Bell II.

Lastly, FIE cites Jastremski v. Safeco Ins. Companies, supra, 243 F.Supp.2d 743, a federal district court decision that is in fact irreconcilable with Bell II. The decision is notable chiefly because it relies on the opinion letter dated November 19, 2002, by the Administrator of the Wage and Hour Division of the Department of Labor (hereafter DOE Opinion Letter) in denying the claim of an insurance adjuster for unpaid overtime under the ELSA.

The DOL Opinion Letter is based on a request by an association of insurance companies for an opinion confirming “that insurance claims adjusters are exempt from the overtime requirements of the Fair Labor Standards Act” and is premised on a description of the claims adjusters’ work provided by the insurance companies. The letter describes the adjusters as being “primarily responsible for resolving a claim.” They “weigh the factual information” and “evaluate whether there is coverage for the claim under the policy.” They have full authority to settle claims within “their established authority,” which “ranges from a minimum of $3,000 to more than $50,000.” On claims above their personal limits, they make recommendations to supervisors, “which are generally approved,” pursue negotiations, and “advise the company on whether to settle the claim or to pursue litigation.”

The DOL Opinion Letter concludes that the claims adjusters’ duties are “administrative in nature” on the basis of an analysis of 29 C.F.R. part 541.205. It characterizes the adjusters as being “ ‘engaged in “servicing” a business’ ” within the meaning of part 541.205(b) and states that the Wage and Hour Division “has long recognized that claims adjusters typically perform work that is administrative in nature.” The opinion then proceeds to find that the adjusters’ work is of “substantial importance to the company” within the terms of part 541.205(a). While the opinion notes that part 541.205(a) distinguishes the “administrative operations of a business” from production work, it does not mention the body of federal law applying the administrative/production worker dichotomy derived from that provision and, in fact, it cites only one judicial decision—Palacio v. Progressive Ins. Co., supra, 244 F.Supp.2d 1040.

The deference to be given to DOL opinion letters is governed by Christensen v. Harris County (2000) 529 U.S. 576 [146 L.Ed.2d 621, 120 S.Ct. 1655], which follows an earlier decision, Skidmore v. Swift & Co. (1944) 323 U.S. 134 [89 L.Ed. 124, 65 S.Ct. 161]. Distinguishing opinion letters from “formal adjudication or notice-and-comment rulemaking,” the decision explains that interpretations contained in the letters “lack the force of law,” but are “ ‘entitled to respect’ ... to the extent that those interpretations have the ‘power to persuade’. . . .” (Christensen, supra, at p. 587, citation omitted.) In a more complete statement of this point, the Skidmore decision states the opinions “do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” (Skidmore, supra, at p. 140.)

Since DOL opinion letters lack the force of law, they may be rejected categorically as a source of an intervening change of law under the law-of-the-case doctrine. Moreover, in our view, the DOL Opinion Letter here does not offer persuasive reasons to reconsider our decision in Bell II. First, the letter is based on distinguishable facts. The evidence in Bell II disclosed that the claims adjusters in the Personal Lines Division were “ordinarily occupied in the routine of processing a large number of small claims.” (Bell II, supra, 87 Cal.App.4th 805, 827-828.) With few exceptions, their settlement authority was set “at $15,000 or lower and often [was] $5,000 or lower.” (Id. at p. 828.) For the most part, their work consisted of gathering facts, filling out appropriate forms, and “ ‘communicating with policy holders and third party claimants about the indemnity value of the claim ....’” (Id. at p. 826.) “On matters of relatively greater importance,” they acted as “conduits of information to supervisors” or as “ ‘go-betweens’ in conveying information to [an] attorney.” (Id. at p. 828.)

Secondly, the persuasive power of the DOL Opinion Letter is undermined by its failure to review the body of federal decisions applying the administrative/production worker dichotomy derived from 29 C.F.R. part 541.205(a). In this respect, it appears to represent a departure from past opinion letters of the DOL Wage and Hour Division that have repeatedly employed this analysis. The administrative/production worker dichotomy, as Bell II notes, offers a common frame of reference for federal decisions in this area and has led to summary judgment for the employees in á line of decisions.

Thirdly, the statement that the DOL has “long recognized” the work of claims adjusters to be “typically” administrative in nature is overly simplified. In Bell II, we noted a 1940 DOL report stating that “ ‘the term “claim agent” may cover a great variety of employees.’ ” (Bell II, supra, 87 Cal.App.4th 805, 827, citation omitted.) As indicated in 29 C.F.R. part 541.205(c)(5), the job category includes exempt employees employed in the capacity of “advisory specialists and consultants.” But the duties of the claims representatives in Bell II closely resembled an “inspector for an insurance company,” listed as a nonexempt employee in 29 C.F.R. part 541.205(c)(2). Moreover, 29 C.F.R. part 778.405 lists insurance adjusters as an example of those nonexempt employees with irregular hours who may enter into contracts guaranteeing constant pay for varying workweeks under section 7(f) of the FLSA.

Much of the argumentation of FIE and amici curiae seeks to demonstrate that our decision in Bell II was in error. These arguments cannot easily be reconciled with the law-of-the-case doctrine. Our high court has stated that the doctrine demands that the court adhere to a principle or rule of law enunciated in an earlier appeal of the same case even though it may “be clearly of the opinion that the former decision is erroneous in that particular.” (Tally v. Ganahl (1907) 151 Cal. 418, 421 [90 R 1049].) But, stretching the limits of the change-of-law exception to the doctrine, FIE argues that the five recent federal decisions and the DOL Opinion Letter provide further clarification of the applicable state law, revealing errors in our analysis, and that a reconsideration of the decision is required to avoid injustice to California employers. We think that we have adequately answered this argument by showing that the federal appellate decisions in Webster and Bothell, as well as the district court decision in Schaefer, are entirely consistent with our analysis in Bell II. The Palacio decision also is basically compatible with our opinion because it applies the same analytical methodology on distinguishable facts. FIE’s arguments rest on the questionable relevance of the DOL Opinion Letter to interpretation of wage order No. 4 and on the single federal district court decision (Jastremski) that has cited the DOL Opinion Letter as authority.

Nevertheless, we will reply to FIE’s arguments on the merits. FIE and amici curiae pursue four lines of argument: (1) the Bell II opinion “treat[s] employees’ job duties as irrelevant,” (2) it causes relief to turn on FIE’s organizational structure and the geographic location of the plaintiffs’ jobs, (3) it misconstrues “the product of an insurance company,” and (4) it fails to recognize the “ancillary” nature of the plaintiffs’ services.

The first argument is based on an apparent misreading of the opinion. In Bell II we held that wage order No. 4 required proof both of employment in an administrative capacity and of job duties meeting certain criteria (“ ‘work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment’ ”). Concluding that plaintiffs were not employed in an administrative capacity, we did not reach the criteria relating to job duties in the second prong of the exemption or explore the corresponding body of federal interpretative law. We did not, however, treat the plaintiffs’ job duties as irrelevant. To the contrary, we examined the plaintiffs’ jobs using the expression “duties,” as well as equivalent terms such as “activities,” “work,” “mission,” and “function,” to describe the jobs in the context of the employer’s business.

The second argument similarly reflects a misunderstanding of the opinion. We see nothing in Bell II that would suggest it “tum[s] on the happenstance of geographic location/corporate structure.” The decision engages in a review of the undisputed facts relevant to an adjudication of the plaintiffs’ administrative capacity. Holding that plaintiffs were not employed in an administrative capacity, we carefully phrased our opinion in terms of these facts, that is, on “an analysis of the peculiar nature of FIE’s business and the claims representatives’ role in that business . . . .” (Bell II, supra, 87 Cal.App.4th 805, 829.) But the opinion does not assign to particular facts, such as those concerning corporate structure or the plaintiffs’ work location, a significance exceeding their actual relevance to the issue of administrative capacity.

Indeed, the opinion never went beyond the strictly factual observation that the plaintiff claims representatives worked in branch offices, which performed none of the activities constituting the administrative or executive functions of the corporation. These activities were delegated to other corporate entities or performed elsewhere. The work performed by the plaintiff claims representatives in branch offices was devoted entirely to carrying out one important component of the business—claims adjustment—and was limited to the routine aspects of performing that function. We see nothing in our discussion of the undisputed facts to suggest that the determination of administrative capacity turns on the location or departmental organization of the place of employment.

The third argument is based on an abstract characterization of the “product of an insurance company” and deduces from this characterization that plaintiffs were not production workers. It is argued, for example, “that the product of an insurance company is its policies, not claims adjusting,” and therefore claims adjusters cannot be production workers. Amici curiae construe the decision in Reich v. John Alden Life Ins. Co. (1st Cir. 1997) 126 F.3d 1, 9-10, as supporting their reasoning. But as we read the John Alden decision, it explores the significance of a stipulation of facts. We decline to follow two federal district court decisions that have relied on the John Alden dicta to deny overtime claims. (Wilshin v. Allstate Ins. Co. (M.D.Ga. 2002) 212 F.Supp.2d 1360, 1376; Hogan v. Allstate Ins. Co. (M.D.Fla. 2002) 210 F.Supp.2d 1312, 1320.)

The relevant issue concerns the propriety of the administrative/production worker dichotomy as an analytic tool. We recognized in Bell II that the dichotomy may lose its utility as it is applied to small or specialized segments of a business. (Bell II, supra, 87 Cal.App.4th 805, 826; see also Bothell v. Phase Metrics, Inc., supra, 299 F.3d 1120, 1126.) But the federal decisions applying the dichotomy to grant relief to particular employee groups do not tie its use to a global characterization of the employer’s business. In Bell II, we found Reich v. Chicago Title Ins. Co., supra, 853 F.Supp. 1325, to be “especially instructive.” (Bell II, supra, at p. 822.) Applying the dichotomy to grant summary judgment to escrow closers, the court observed that the employer’s “ ‘status as a title insurer does not alter the fact that escrow closings are a very real product . . . which it markets and sells separate from ... its overall title insurance operations.’ [Citation.]” (Id. at p. 823.) We consider that, under the facts of the present case, the administrative/production worker dichotomy may similarly be applied to the work of claims adjusting in “an important component of [FIE’s] business organization” notwithstanding the existence of other business activities in the organization. (Id. at p. 828.)

In a related argument, amici curiae argue that claims adjusting is ancillary to the business function of an insurance company and therefore administrative in nature. The argument relies on a short line of decisions stemming from a comment in Martin v. Cooper Elec. Supply Co., supra, 940 F.2d 896. Affirming a lower court finding that salespersons did not come within 29 C.F.R. part 541.205(b), i.e., administrative employees “servicing” a business, the court observed, “ ‘Servicing’ a business within the meaning of 29 C.F.R. § 541.205(b) denotes employment activity ancillary to an employer’s principal production activity .... It follows that inside salespersons do not ‘service’ Cooper’s business by making wholesale sales—wholesale sales is Cooper’s business.” (Martin v. Cooper Elec. Supply Co., supra, at pp. 904-905.) In other words, the employees did not perform ancillary activities and hence did not come within this subcategory of administrative employees.

A later case, Reich v. John Alden Life Ins. Co., supra, 126 F.3d 1, applied this language to the converse fact situation: it found that the employees did perform an ancillary function and hence could be regarded as engaged in “administrative ‘servicing’ within the meaning of section 541.205(b).” (Reich v. John Alden Life Ins. Co., supra, at p. 10; see also Haywood v. North American Van Lines, Inc. (7th Cir. 1997) 121 F.3d 1066, 1072.) The federal district court decision in Palacio v. Progressive Ins. Co., supra, 244 F.Supp. 1040, contains language that can be regarded as taking the concept of “ancillary” services still further to limit the application of the “administrative/production dichotomy” in 29 C.F.R. part 541.205(a). (Palacio v. Progressive Ins. Co., supra, at p. 1047.)

In Bothell v. Phase Metrics, Inc., supra, 299 F.3d 1120, 1126, the court recognized that the concept of “ancillary” services arises as a gloss on 29 C.F.R. part 541.205(b), though “[s]ome cases do use the term ‘ancillary’ as a short-hand description of administrative activities.” Like the Bothell court, we think the concept of “ancillary” services should be confined to its original context as an explication of 29 C.F.R. part 541.205(b). With this limited reference, it has no bearing on our finding that the plaintiffs belong “in the sphere of rank and file production workers.” (Bell II, supra, 87 Cal.App.4th 805, 828.)

B. Amendment to Wage Order No. 4

Lastly, FEE argues that the judgment should be set aside with respect to any damages or injunctive relief applying after the amendment of wage order No. 4 on October 1, 2000. We note that FEE never raised this argument in the trial court and therefore has waived any assignment of error on appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444.)

We conclude that reconsideration of our decision in Bell II is precluded by the law-of-the-case doctrine. FEE has failed to show an intervening change in the controlling rules of law that would justify a departure from this procedural rule.

C. Class Certification

1. Legal Background

FEE next contends that the trial court abused its discretion in initially certifying the class of claims representatives on May 28, 1998, and later denying the motions for decertification filed on September 22, 1999, and May 24, 2001. The contention requires us to briefly review the principles governing the certification of class actions in California.

The class action in California evolved from “the equitable doctrine of virtual representation which ‘ “rests upon considerations of necessity and paramount convenience, and was adopted to prevent a failure of justice.” ’ [Citations.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 703-704 [63 Cal.Rptr. 724, 433 P.2d 732].) The only statutory authorization for the class action consists of a phrase at the end of a statute dealing with compulsory joinder. Code of Civil Procedure section 382 states: “. . . and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” Reflecting a “general support of class actions” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459 [115 Cal.Rptr. 797, 525 P.2d 701), the California Supreme Court “has urged trial courts to be procedurally innovative” in determining whether to allow class suits, “encouraging them to incorporate procedures from outside sources,” in particular “rule 23 of the Federal Rules of Civil Procedure .... [28 U.S.C.]” (City of San Jose v. Superior Court, supra, at p. 453, fn. omitted.)

California courts have long “held that two requirements must be met in order to sustain any class action: (1) there must be an ascertainable class [citations]; and (2) there must be a well defined community of interest in the questions of law and fact involved affecting the parties to be represented.” (Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 704; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [97 Cal.Rptr.2d 179, 2 P.3d 27]; Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [174 Cal.Rptr. 515, 629 P.2d 23]; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 809 [94 Cal.Rptr. 796, 484 P.2d 964].) While the requirement of an ascertainable class normally requires little elaboration, the community of interest requirement has been held to embody three factors: “(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Richmond v. Dart Industries, Inc., supra, at p. 470; Linder v. Thrifty Oil Co., supra, at p. 435; Bartold v. Glendale Federal Bank, supra, 81 Cal.App.4th 816, 828; Civ. Code, § 1781, subd. (b).)

The certification of a class is a discretionary decision that demands the weighing of many relevant considerations. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429, 435.) In Collins v. Rocha (1972) 7 Cal.3d 232, 238 [102 Cal.Rptr. 1, 497 P.2d 225], our high court observed, “The ultimate question in every case of this type is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.” Following this language, numerous later cases have “admonished trial courts to carefully weigh respective benefits and burdens and to allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts.” (City of San Jose v. Superior Court, supra, 12 Cal.3d 447, 459; see also Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104—1105 [131 Cal.Rptr.2d 1, 63 P.3d 913]; Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 914 [103 Cal.Rptr.2d 320, 15 P.3d 1071]; Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385 [134 Cal.Rptr. 393, 556 P.2d 755]; Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 655 [22 Cal.Rptr.2d 419].)

By preventing “a failure of justice in our judicial system” (Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429, 434), the class action not only benefits the individual litigant but serves the public interest in the enforcement of legal rights and statutory sanctions. (Cf. Bartold v. Glendale Federal Bank, supra, 81 Cal.App.4th 816, 830-831.) Thus, in upholding a consumer class action, the court in Vasquez v. Superior Court, supra, 4 Cal.3d 800, 807, quoted with approval an argument for stockholder class action suits: “ ‘Modem society seems increasingly to expose men to . . . group injuries for which individually they are in a poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive. If each is left to assert his rights alone if and when he can, there will at best be a random and fragmentary enforcement, if there is any at all.’ ”

In a proper case, “the judicial system substantially benefits by the efficient use of its resources” afforded by class certifications. (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d 462, 474.) Class actions offer a means of avoiding “repetitious litigation” (Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429, 435) and “a multiplicity of legal actions dealing with identical basic issues . . . .” (Vasquez v. Superior Court, supra, 4 Cal.3d 800, 810.) Nevertheless, by greatly expediting the resolution of claims, class actions can create possibilities for injustice in an individual case. (City of San Jose v. Superior Court, supra, 12 Cal.3d 477, 458.) A line of California cases follows the principle of mle 23(b)(3) of the Federal Rules of Civil Procedure (28 U.S.C.), which “provides that, for a class action to be maintained, it must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’ This ‘superiority’ criterion has been held to be ‘manifest’ in the . . . requirement that the class mechanism confer ‘substantial benefits.’ ” (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 773 [259 Cal.Rptr. 789]; Caro v. Proctor & Gamble Co., supra, 18 Cal.App.4th 644, 662; Schneider v. Vennard (1986) 183 Cal.App.3d 1340, 1346-1347 [228 Cal.Rptr. 800]; Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 143 [191 Cal.Rptr. 849].)

“Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification” (Linder v. Thrifty Oil Co., supra, 23 Cal.4th 429, 435) or motions for decertification. (Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 360 [134 Cal.Rptr. 388, 556 P.2d 750].) “[I]n the absence of other error, this court will not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation].” (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d 462, 470.)

2. Legal Challenge

Claiming that the trial court abused its discretion in initially certifying the class of claims representatives on May 28, 1998, FIE and amici curiae advance an array of arguments with little actual citation to the record. This failure to address the record defeats their challenge to the trial court’s finding of a community of interest among class members. The trial court found that the class was “composed of hundreds of similarly situated employees” employed as claims representatives and that there were “common questions of law and fact common to the class . . . with respect to such class members’ claims for overtime pay.” The finding was based on plaintiffs’ extensive evidentiary showing in support of the motion for certification. In opposing the motion and moving twice for decertification, FIE never claimed that there were differences among the various duties performed by class members that would bar class certification; and in this appeal, it does not offer any reasoned argument, based on actual citations to the record, to this effect. The trial court’s findings of fact with respect to a community of interest remain unchallenged.

Arguing that “questions specific to each individual claims representative” predominated over common legal issues, FIE points only to matters, such as overtime hours worked, pertaining to the determination of individual damages. It is well established that the necessity for an individual determination of damages does not weigh against class certification. The community of interest requirement recognizes that “ultimately each class member will be required in some manner to establish his individual damages . . . .” (Vasquez v. Superior Court, supra, 4 Cal.3d 800, 815; Collins v. Rocha, supra, 7 Cal.3d 232, 238; Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 397 [112 Cal.Rptr.2d 99]; Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916 [107 Cal.Rptr.2d 761].) As explained in Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266 [178 Cal.Rptr. 612, 636 P.2d 575], “a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or