In Cacho v. Eurostar, Inc., the Court had to examine what happens when there is an illegally written corporate policy, but that policy was not followed by the company. Plaintiffs David Cacho and Regina Silva asserted class claims against their former employer, Eurostar, Inc., alleging Eurostar violated California wage and hour laws by failing to provide employees with required meal and rest breaks and compelling employees to work off the clock at Eurostar’s Warehouse Shoe Sale (WSS) retail shoe stores in California.  Plaintiffs appealed from the trial court’s order denying their motion for class certification, in which the court found plaintiffs failed to demonstrate common issues of law or fact predominated over individual issues and plaintiffs’ claims were not typical of the class.  Plaintiffs contended that Eurostar maintained uniform break and overtime policies that were facially inconsistent with the labor laws, and therefore the claims were “eminently suited” for class adjudication under Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012) (Brinker). This case presented the question whether in the wake of Brinker, if the employer has a break policy (here, a meal break policy) that was compliant with the applicable wage order but silent as to certain requirements, does the omission of those requirements support class certification in the absence of evidence of a uniform unlawful policy or practice?  Similarly, where an employer has a uniform written break policy that on its face is unlawful (here, a rest break policy), but in practice the policy has not been applied to company employees, is it nonetheless suitable for class certification?  The Court of Appeal said that the answer to both questions was no.  The Court stated because plaintiffs failed to show they could prove Eurostar’s liability for meal break, rest break, and off-the-clock violations by common proof at trial, the trial court did not abuse its discretion in denying class certification.  In reaching its determination, the trial court did not err in considering the evidence submitted by the parties as to Eurostar’s policy and practices to assist the court in making the threshold determination whether plaintiffs could prove liability for the alleged violations with common proof.  It stated that although trial courts must be wary of analyzing evidence of wage and hour violations at the class certification stage in a manner that prejudges the merits, they may properly consider the evidence to determine whether classwide liability can be established through common proof. 

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