Cochran v. Schwan's Home Service, Inc.

Filed 8/12/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

COLIN COCHRAN, B247160

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC449547) v.

SCHWAN’S HOME SERVICE, INC.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County. Teresa Sanchez-Gordon, Judge. Reversed.

Law Offices of Kevin T. Barnes, Kevin T. Barnes, Gregg Lander; Kokozian Law Firm and Bruce Z. Kokozian, for Plaintiff and Appellant.

Kutak Rock, Matthew C. Sgnilek; and Alan L. Rupe, for Defendant and Respondent.

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We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 28021 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills. Because the trial court relied on erroneous legal assumptions about the application of section 2802, we must reverse the order denying certification to a class of 1,500 service managers in an action against Schwan’s Home Service, Inc. (Home Service) seeking, inter lia, reimbursement of work-related cell phone expenses. Upon remand, the trial court shall reconsider the motion for class certification in light of our interpretation of section 2802. When reconsidering the motion, it shall apply the principles set forth in Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran) to the degree that the class representative, Colin Cochran (Cochran), proposes to use statistical sampling evidence to establish either liability or damages. The parties shall have the opportunity to revise their papers to address the issues raised herein. FACTS Cochran filed a putative class action against Home Service on behalf of customer service managers who were not reimbursed for expenses pertaining to the work-related use of their personal cell phones. He alleged causes of action for violation of section 2802; unfair business practices under Business and Professions Code section 17200 et seq.; declaratory relief; and statutory penalties under section 2699, the Private Attorneys-General Act of 2004. He moved to certify the class. Home Service filed an opposition as well as a motion to deny certification. On October 24, 2012, the trial court held a hearing. It found that the class was ascertainable; the class was sufficiently numerous because it included 1,500 people; Cochran was a typical as well as an adequate class member; and counsel for the putative class was qualified to act as class counsel. Next, the trial court analyzed commonality. It