Dancy v. Walmart Inc., et al.

I.

Background

Lynette Branco worked the overnight shift as an Assistant Manager at a Walmart Supercenter in Patterson. She contends that Walmart misclassified her and roughly 857 other Overnight Assistant Managers (“OAMs”) and Overnight Coaches (“OCs”) across California as executives exempt from the overtime laws, when in fact they spent most of their nights stocking shelves, straightening aisles, and hauling pallets alongside the hourly associates they supervised. In February, the Court denied Plaintiff’s prior motion for class certification without prejudice so that Plaintiff could return with “a more detailed trial plan addressing the issues and concerns discussed above.” (Order Re: Motion for Class Certification, Feb. 9, 2026 (“February Order”), p. 18.)

The procedural history is set out in the February Order and is only summarized here. Plaintiff Branco filed suit in Stanislaus County on May 8, 2020; her action was coordinated with the Dancy action in this Court in December 2020, and the Lau action was added in July 2024. The operative complaint alleges misclassification under the executive exemption of IWC Wage Order 7-2001, with derivative claims for meal and rest period premiums, wage statement and waiting time penalties, restitution, and PAGA penalties, together with a freestanding claim that payroll deductions funding Walmart’s Associates in Critical Need Trust (“ACNT”) violate Labor Code section 221.

The Court heard Plaintiff’s original certification motion in January 2026 on a substantial record: over 200 class member declarations (plus supplemental and further supplemental rounds) for Plaintiff; 70 declarations, impeachment evidence, and an expert rebuttal for Walmart. The February Order found the proposed class ascertainable and found Plaintiff typical and adequate. But the Court further found that common issues did not predominate, stating that the parties’ declarations, “when credited and read together, suggest that the OAMs’ and OCs’ assigned tasks and working conditions vary significantly, irrespective of whatever companywide policies Walmart may have.” (February Order, pp. 13–14.)

The Court also stated that Plaintiff had offered no “substantive or workable trial plan for the adjudication of the affirmative defense that she herself positions at the center of argument in favor of class certification.” (Id., p. 17.)

With her renewed motion, Plaintiff adds two main items. First, Plaintiff’s survey expert, Dr. Jeffrey Petersen, working with Davis Research, completed a telephone survey of 85 members of the class list. As reported, 96.5% of respondents said they were required, at least once, to remain past the scheduled end of their shifts performing the same work as the stockers and maintenance associates they supervised; 89.4% reported spending half or more of their work time, in at least one week, on such work; and those respondents reported that this occurred in 64.9% of their workweeks (a figure Dr.

Petersen adjusted downward from 75.7% to account for potential bias). (Memo, pp. 3, 14–15 and fn. 15; Petersen Decl., ¶ 86.) Second, Plaintiff filed a Trial Methodology Statement (“TMS”). It focuses on a random sample of class member depositions (45 in the moving papers, 40 on reply) which Plaintiff’s statistician, Dr. Brian Kriegler, calculates would support classwide findings at a one-sided 95% confidence level with a margin of error near ten percent. (TMS, pp. 2–4; Kriegler Decl., ¶¶ 22– 25.)

Each deposition would open with a scripted question set derived from the survey (30 to 40 minutes), followed by cross-examination by Walmart (30 to 40 minutes) and brief follow-up, capped at two hours, with all objections except privilege reserved rather than stated. (TMS, pp. 4–5.) Dr. Kriegler would then “code” the transcripts and present the results to the trier of fact in aggregate form. (Id. at p. 5; Kriegler Decl., ¶¶ 26–27.) The plan proposes bifurcation of liability and damages and, if liability is found, a third phase in which absent class members would establish their entitlement by claim forms executed under penalty of perjury. (TMS, pp. 2–8 and fn. 14.)

Walmart opposes in all respects, supported by a rebuttal report from Drs. Nancy Mathiowetz and Chen Song, declarations of two survey respondents, and 27 evidentiary objections.

II. The Renewed Motion is Properly Before the Court Walmart initially argues that the Court should not read the rest of the motion because Code of Civil Procedure section 1008, subdivision (b), permits a renewed motion only on “new or different facts, circumstances, or law,” supported by an affidavit explaining why the showing was not made earlier, and nothing prevented Plaintiff from commissioning her survey and drafting her trial plan back in 2024. (Opp., pp. 21–22, citing Even Zohar Construction & Remodeling, Inc. v.

Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, and Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1560.) Section 1008 exists to protect courts from litigants who bring the same motion twice and hope for a different result. It does not prevent courts from hearing further motions they have invited. The February Order denied certification without prejudice at Plaintiff’s request, expressly contemplating a renewed motion supported by a more detailed trial plan. (February Order, p. 18.)

The completed survey, the TMS, and the expert depositions taken since are new facts generated in direct response to the Court’s prior order, and the Court in any event retains inherent authority to revisit its interim orders. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107–1108; see Duran v. U.S. Bank N.A. (2014), 59 Cal.4th 1, 28–29 (Duran) [certification rulings remain subject to modification before judgment].) Walmart’s diligence point is not frivolous, and the Perlman declaration says little on the subject.

But having told Plaintiff what a successful motion would require, the Court will not now fault or restrict her for supplying it. Nevertheless, some of Plaintiff’s additions go beyond the limits contemplated by the February Order. The renewed motion redefines the ACNT class to sweep in day-shift “Assistant Managers” and “Coaches,” positions that Branco never held and the original motion never included. (Opp., p. 14; Branco Dep., p. 158:16-18; compare February Order, p. 4 with Notice of Motion, pp. 1 –2.)

Nothing in the February Order invited such an expansion, and no new facts showing supports it. Therefore, the Court declines to consider the expanded ACNT definition and confines its analysis to the narrower, alternative definition (OAMs and OCs only) set out in the notice of motion.

III. Evidentiary Objections Walmart objects to portions of the Petersen report, the Kriegler declaration, the Woolfson declaration, the Davis Research report, and the Perlman declaration. (Walmart’s Objections, pp. 2–3.) The objections are SUSTAINED insofar as they are directed at legal conclusions embedded in expert papers, most prominently Dr. Petersen’s assertions that his 85 survey responses are “a valid and reliable data set” that “can also be used as part of the determination of liability.” (Petersen Rep., ¶¶ 3, 88; Objection Nos. 1–2.)

Whether survey evidence may establish classwide liability is a question of law for the Court, and not a matter on which an expert may opine, and certainly not in language the expert concedes he includes in the great majority of his reports. The remaining objections, which attack survey methodology, sample composition, and statistical technique, are OVERRULED at this stage. Those criticisms go to weight, and they inform the analysis that follows. (See Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 331–332 (Sav-On).)

A ruling on each numbered objection consistent with this section will issue with the final order.

IV. The Misclassification Class

A. Common issues still do not predominate Beginning with what the parties now agree upon, Plaintiff concedes that all 70 of Walmart’s class member declarants (including the 20 she deposed) were properly classified as exempt. (Memo, pp. 6–7, 16–17; Opp., p. 23.) She attributes their experience to their Store Managers, who, on her theory, chose not to impose the practice at the heart of this case: assigning the overnight crew’s unfinished hourly work to the OAM or OC at the scheduled end of the shift.

Indeed, she calls the individual Store Manager’s decision “the single variation that ultimately determines whether or not an employee in this case will be misclassified.” (Memo, pp. 15–16.) That concession frames the problem. On Plaintiff’s own theory, whether any given class member was misclassified depends on which manager ran which store during which stretch of a class period spanning nearly a decade and more than 270 stores. (Opp., pp. 13, 17.) Even then, the inquiry further depends on how the particular OAM or OC actually spent the hours of particular workweeks.

That is not a single common question with a single common answer. Rather, it is several hundred particular questions wearing a common label. The exemption inquiry first asks what work the employee performed during the workweek, measured against the employer’s realistic expectations and the requirements of the job; an employee who falls below the fifty-percent line through her own substandard performance is not misclassified. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 802 (Ramirez).) Each element of that inquiry, on this record, varies with the individual. (Opp., pp. 16–17.)

Plaintiff’s survey does not bridge the gap because it at most establishes that the alleged misclassification was widespread, not necessarily that it was classwide. By Plaintiff’s own numbers, a meaningful fraction of the class (at least one in ten, and considerably more when the results are examined week by week) was properly classified. (Petersen Decl., ¶¶ 84–85; Memo, p. 16.) The survey has no way of identifying which members, at which stores, in which weeks. “Wide variation among class members is a factor informing whether the exemption questions can be resolved by a simple ‘yes’ or ‘no’ answer for the entire class.” (Duran, supra, 59 Cal.4th at p. 32; Mies v.

Sephora U.S.A., Inc. (2015) 234 Cal.App.4th 967, 982.) Here, they cannot. Further, the survey in this instance is heavily biased. Of its 85 respondents, 49 (nearly six in ten) are Plaintiff’s own declarants, and not one is a declarant for Walmart. (Resp. TMS, p. 8; Murata Decl. ¶¶ 58–59; Mathiowetz/Song Rep., App. C.) A survey drawn so heavily from one side’s witness pool is less a window on the class than a mirror held up to the moving papers. While Dr. Petersen’s reply declaration answers some of the methodological criticisms (Petersen Decl., ¶¶ 3–27), no regression analysis can adjust away the composition of the sample.

In reply, Plaintiff points to Sav-On, which holds that predominance is a comparative concept, that a de facto practice of loading managers with non-exempt work can support certification, and that a Plaintiff need not prove the employer’s classification “right as to all members of the class or wrong as to all members of the class.” (Sav-On, supra, 34 Cal.4th at pp. 327, 338; Reply, p. 14.) While these points are valid, Sav-On involved evidence of standardized duties amenable to a common answer and did not hold that a plaintiff establishes predominance by conceding that liability turns on a store-by-store, manager-by-manager variable and then proposing to measure the variable’s prevalence.

The Court found in February, on declarations from both sides, that OAM and OC working conditions “vary significantly.” (February Order, pp. 13–14.) Nothing in the renewed papers disturbs that finding; the new evidence, candidly assessed, confirms it. Predominance remains unestablished.

B. Trial Plan While Plaintiff’s new trial plan is significantly improved, it fails to make the case manageable. The February Order faulted Plaintiff for offering only the idea of a survey and the mention of procedural tools. The TMS presented here is different, and the survey is done. The proposed deposition sample would be drawn randomly from the full class list and compelled by subpoena (TMS, pp. 5–6), thereby addressing, at least for the sample itself, the selfselection and non-response criticisms that dogged the survey. (Reply, pp. 8, 17.)

The proposed margin of error, near ten percent, bears no resemblance to the 43.3% the Supreme Court criticized in Duran. The sampled witnesses would testify under oath, subject to crossexamination, in contrast to the anonymous survey respondents denounced in McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 434 (McCleery). The experts are in relative agreement on feasibility because Dr. Kriegler proposes 40 depositions and Walmart’s Dr. Song proposes 63, having applied maximum-variability assumptions. (Reply, pp. 5–7; Song Rebuttal Decl., ¶¶ 17, 20.)

Roughly 50 to 60 depositions have already been taken in this case without incident. (Memo, p. 3, fn. 10; Reply, p. 7, fn. 15.) If the only question were whether the parties can take five dozen depositions, the answer would be yes. However, that is not the only question. Five problems remain in the view of this Court, and they present structural rather than logistical questions.

1. The Survey’s Role at Trial The plan uses the survey both as the variability input for the sample-size calculation and as affirmative evidence of classwide liability. (See TMS, pp. 2–4; Memo, pp. 1–3; Resp. TMS, pp. 8–12.) The first use is curable because the Court could simply adopt Dr. Song’s more conservative figure. The second use is not curable because extrapolating self-reported, litigation-aware survey answers from a pool dominated by Plaintiff’s declarants to more than 800 absent class members is the kind of use the Court of Appeal disapproved in Duran v. U.S. Bank National Assn. (2018) 19 Cal.App.5th 630, 644–650 (Duran II), and McCleery, supra, 37 Cal.App.5th at pp. 451–456.

2. The Adjudication Mechanism Dr. Kriegler proposes to “code” the deposition transcripts and present the results in aggregate. (TMS, pp. 2–5.) Yet he disclaims any opinion on whether anyone was misclassified, and his coding protocol remains unspecified. (Resp. TMS, pp. 13–15.) A trial plan must show how the factfinder moves from data to liability; simply naming a tool is not enough. (Payton v. CSI Elec. Contractors, Inc. (2018) 27 Cal.App.5th 832, 844.) And substituting an expert’s summary of deposition hearsay for the testimony itself removes the trier of fact’s responsibility and ability to assess credibility — no small matter in a case in which several of Plaintiff’s declarants have been impeached, have repudiated their declarations, or have withdrawn them. (Opp., pp. 10, 19; Murata Decl., ¶¶ 33, 57.)

3. The Defense’s Share of Trial A scripted 30-to-40-minute direct examination, with objections held off the record, followed by an equal allotment of cross examination, does not explain how Walmart presents its individualized case as to each sampled member (such as the Store Manager, Market Manager, and co-worker witnesses), the performance records, and the realistic-expectations showing that Ramirez contemplates. (See TMS, pp. 4–5; Resp. TMS, pp. 16–17; Opp., pp. 24– 25.) The individual trials of just three assistant managers in Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440 involved nearly fifty witnesses. Duran requires that a statistical model “be designed to accommodate” the case-specific deviations the defense raises. (59 Cal.4th at p. 40.) This plan largely assumes them away.

4. The Claim Forms If liability and aggregate damages are found, absent class members would establish their own misclassification afterward, by claim forms Walmart cannot test. (TMS, pp. 3 and 8, fn. 14.) That proposal concedes the central point: individual liability would remain unadjudicated when the class trial ends. The plan does not solve that problem; it schedules it for later. (Resp. TMS, pp. 19–20.) Duran forbids recasting individual questions of liability as questions of damages or claims administration (59 Cal.4th at pp. 36–37), and “Trial by Formula” fares no better in California than it did in Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338, 367.

5. Extrapolation of Liability Plaintiff’s reply clarifies the arithmetic: each sampled deponent would be adjudicated misclassified or not, week by week, and the sample’s proportions would then be projected onto the class. (Reply, pp. 11–12.) The clarification answers Dr. Song’s “averaging” critique, but it confirms what the plan is. (Song Rebuttal Decl., ¶ 41; Reply, p. 11.) The factfinder would conduct forty to sixty genuine exemption mini-trials, and then fix the rights of the remaining 800 members by ratio.

A margin of error, however small, is not a substitute for an answer to the question a misclassification trial must ultimately answer: which members. Where the defense is individualized, that final step is the one Duran and its progeny do not permit. The Court does not doubt that a single trial would be more efficient, and less expensive and time-consuming, than 800. Superiority, however, asks not merely whether a class trial would be efficient but whether it can be fair; in other words, whether a class trial can adjudicate the defendant’s defenses as well as the plaintiffs’ claims. “The manageability of individual issues is just as important as the existence of common questions,” and rights that are inconvenient to the chosen litigation posture do not thereby become forfeitable. (Duran, supra, 59 Cal.4th at p. 29; Granberry v.

Islay Invs. (1995) 9 Cal.4th 738, 749.) Where a defense is individualized, Duran and its progeny do not permit fixing the rights of class members by a ratio. (Duran, supra, 59 Cal.4th at pp. 31–32, 36–40.) Because the plan cannot manage the individual issues that predominate this case, Plaintiff has not carried her burden on superiority.

C. The denial is a final determination on this record The Court denied the original motion without prejudice so that Plaintiff could present a completed evidentiary showing and a fully developed plan. (February Order, p. 18.) She has now done so, and the Court has evaluated certification on a complete record, twice. Further rounds of evaluation would serve no purpose. The denial of certification of the misclassification class is accordingly a final determination on the present record, without further invitation to renew. The Court recognizes that this ruling, in combination with the rulings below, is appealable to the extent it sounds the death knell for these class claims. (See In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757–758.)

V. The Alternative “Declarant” Class Plaintiff proposes, in the alternative, a class limited to the 200-plus individuals who have signed (and not withdrawn) declarations stating that they spent half or more of their time on their subordinates’ work. (Notice of Motion, p. 2; Memo, p. 2, fn. 3; TMS, p. 6, fn. 9.) Walmart calls this a “fail-safe” class. (Opp., p. 28.) Strictly speaking it is not, because membership turns on the objective fact of having signed a declaration, not on a finding of liability. (Reply, p. 18.)

But it is a proposed class defined by which side’s papers its members signed. That is more akin to a witness list than a class. The proposal appears only in footnotes, unaccompanied by any attempt to establish numerosity, community of interest, or superiority for the group it describes; it selects members by litigation alignment, which raises obvious adequacy concerns for everyone excluded; and it would not even avoid individual trials because Walmart’s impeachment case is aimed precisely at these declarants. (Opp., p. 19; Murata Decl., ¶¶ 33, 57.)

Accordingly, the Court DENIES certification of this alternative class.

VI. The ACNT Class The ACNT claim is different in a meaningful way. Plaintiff’s theory is categorical: she contends that any deduction from a salaried associate’s wages to fund the ACNT violates Labor Code section 221, regardless of whether the associate authorized it, just as an agreement to work for less than the minimum wage is unenforceable no matter how freely given. (Memo, pp. 9–10; Reply, p. 18.) The Court expresses no view on whether that theory is legally correct because what matters here is its predominance.

The ACNT presents a single question of law whose answer resolves every member’s claim in one stroke; membership and damages are ministerial exercises in reading Walmart’s own payroll records, which flag each deduction with a “CRIT NEED TR” code. (TMS, pp. 7–8; Woolfson Decl., ¶¶ 23–33; Opp., p. 28, fn. 47; Reply, p. 18.) The individual amounts are far too small to support individual actions. Walmart’s responses are merits arguments ill-suited for resolution at this stage. (Opp., pp. 18–19, 28; Stokes Decl., ¶ 18.)

The ACNT may well be a separate public charity; section 224 may well permit deductions an employee has expressly authorized in writing. If so, Walmart could prevail classwide, in a single ruling, and very possibly on cross-motions filed soon after certification. That is not a reason to deny certification; it is a demonstration of why this claim is suited to it. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439–440.) Walmart’s remaining argument is that voluntariness requires member-by-member inquiry.

This is directed at a claim Plaintiff is not making. (Reply, p. 18 [“Branco does not allege unauthorized deductions but that the deductions are illegal, regardless of authorization”].) If authorization defeats the claim as a matter of law, it defeats it for everyone at once. Nevertheless, a key element remains missing on the record before the Court. Nothing in the present record establishes that Plaintiff Branco herself had an ACNT deduction. A representative must be a member of the class she represents, however common the question.

Accordingly, the Court GRANTS certification of the alternative ACNT class (all Californiabased OAMs and OCs who had any portion of their wages deducted to fund the ACNT program during the class period), on the condition that Plaintiff file, within 15 days, a declaration with supporting payroll records establishing that Branco had at least one ACNT deduction within the limitations period. If the condition is not met, certification of the ACNT class is DENIED without prejudice to a motion, filed promptly, to substitute or add a suitable representative.

The parties should be prepared to address Plaintiff Branco’s ACNT membership at the hearing; if counsel can resolve the point on the record, the Court will finalize the ruling accordingly.

VII. The Waiting Time Subclass The waiting time subclass is defined as members of the misclassification and/or ACNT classes no longer employed by Walmart. (Notice of Motion, p. 1; TMS, p. 6.) To the extent it depends on the misclassification claim, it falls with that class. (Opp., p. 28; Lampe v. Queen of the Valley Med. Ctr. (2018) 19 Cal.App.5th 832, 852.) To the extent it is premised on ACNT deductions, the theory is undeveloped because the papers do not address whether an allegedly unlawful deduction constitutes “wages” left unpaid at separation for purposes of Labor Code section 203, and they do not brief the good-faith-dispute defense to willfulness. (Naranjo v.

Spectrum Security Services, Inc. (2024) 15 Cal.5th 1056, 1078.) The Court DENIES certification of the waiting time subclass. This denial is without prejudice, if the ACNT class is certified, to a targeted renewed showing limited to the ACNT-derivative theory.

VIII.

Conclusion

For the reasons stated, the Court rules as follows.

1. The Court SUSTAINS Walmart’s evidentiary objections as to the legal conclusions in the expert submissions (including the Petersen Report, ¶¶ 3 and 88) and otherwise OVERRULES Walmart’s evidentiary objections, as set forth herein in Section III. A ruling on each numbered objection will issue with the final order.

2. The Court DENIES Plaintiff’s motion to certify the Misclassification class.

3. The Court DENIES Plaintiff’s alternative motion to certify a class of her declarants.

4. The Court GRANTS Plaintiff’s motion to certify the narrower ACNT class (OAMs and OCs only), conditioned on the representative-membership showing described herein in Part VI. The Court DENIES Plaintiff’s motion to certify the broader ACNT class definition.

5. The Court DENIES Plaintiff’s motion to certify the Waiting Time subclass.

6. The PAGA cause of action is unaffected by this ruling and will proceed, as will the individual claims of the coordinated plaintiffs.

7. The Court ORDERS the parties to file and serve within 15 days their respective positions (with computations and any tolling attributable to the coordination proceedings) regarding the application of the five-year rule (Code Civ. Proc., § 583.310).

The parties should come to the hearing prepared to address: (1) Branco’s membership in the ACNT class; (2) the five-year computation; and (3) any request to stay ACNT notice pending early dispositive cross-motions on the section 221/224 question.

Counsel for Walmart shall prepare the order.

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