In Ghazaryan v. Diva Limousine, LTD, the appellate court reversed the trial court’s denial of plaintiff’s class certification motion and remanded the case with instructions that the trial court certify the class action.  The case was brought by a limousine driver who filed a wage and hour class action against Diva Limousine, LTD. The main issue in the case was Diva’s policy of paying its drivers an hourly rate for assigned trips but failing to pay for on-call time between assignments. This on-call time is referred to as “gap time.”

Background Facts Of Limousine Drivers Time Working

The drivers were notified about their first few driving assignments before their shifted started. The court noticed that about 75% of the drivers were allowed to take Diva cars home and use the cars to drive to their first assignment. After these first few assignments were completed, the drivers received additional assignments from dispatch given the drivers’ location, availability and fairness among the drivers. The drivers could not predict the amount of gap time during any given day.

Diva established policies in its “Chauffeur’s Handbook.” Among the policies, Diva did not allow drivers to use the cars for personal use, drivers were required to stay near the vehicle, and to remain in uniform. The drivers were required to use the gap time to take their meal and rest breaks. However, the breaks could be interrupted dispatched to an assignment. Diva tracked the vehicles using GPS systems.

The plaintiff, Ghazaryan filed his lawsuit alleging Diva by its practice of paying drivers by the job, not by the hour, had failed to pay earned wages and overtime or to provide required rest breaks and meal periods in violation of multiple provisions of the Labor Code and regulations.

Class Certification Issues

Diva opposed class certification arguing that the difficulties in identifying eligible members of the class and assessing the validity of Diva’s compensation policy for different classification of drivers.  Diva also argued that the drivers may or may not have used their gap time for personal pursuits, adding to the individualized inquiry necessary in this case.  

Diva had several different categories of drivers assigned different driving responsibilities (including organ transplant drivers). Diva that some drivers were paid for gap-time, and some were not paid for this time.

The trial court denied plaintiff’s motion for class certification. In explaining the lower court’s error, the appellate court explained:

The trial court is, of course, correct, under well-established Supreme Court authority, “The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’” (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.) But the trial court fundamentally misconceived the import of the rule against evaluating the merits of the plaintiff’s claims in deciding whether class treatment is appropriate. Rather than denying certification because it cannot reach the merits, as the court did here, the trial court must evaluate whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment: “As the focus in a certification dispute is on what type of questions common or individual are likely to arise in the action, rather than on the merits of the case [citations], in determining whether there is substantial evidence to support a trial court’s certification order, [the reviewing court] consider[s] whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.”

Ascertainability and Numerosity

The appellate court held that the Plaintiff’s proposed class was ascertainable and numerous enough to be certified as a class action. The court explained that the class could be identified by Diva’s employment records and that class members “are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” Diva argued that differences in how the drivers were paid makes the class unascertainable. The court disagreed:

Yet the existence of these separate assignments in no way renders Ghazaryan’s proposed class unascertainable. If some drivers worked exclusively in one of these categories, they can simply be excluded from recovery if liability is ultimately found. Alternatively, the class can be modified to specify only those drivers who were not paid for their on-call or gap time. This modification may not even be necessary if, as we suspect, few Diva drivers fall exclusively into a single category.

Based on this, and the fact that there were approximately 170 current and former drivers who worked for Diva, the appellate court held that the class is ascertainable and numerous enough to proceed as a class action.

Community of Interest

The court found Diva’s policies about how drivers could use the gap-time applied to the drivers uniformly. The requirements, for example, that drivers remain with the vehicles, must take new dispatch assignment, not use the vehicle for personal purposes, and remain in uniform applied to all drivers equally. The court noted that "the common legal question remains the overall impact of Diva’s policies on its drivers, not whether any one driver, through the incidental convenience of having a home or gym nearby to spend his or her gap time, successfully finds a way to utilize that time for his or her own purposes."


The court also held that it did not see any advantage to not allowing the case to proceed as a class action and voiced concerns that employees may not be able to find adequate representation if required to pursue their own individual claims.  Therefore, plaintiff met the superiority requirement to proceed as a class action.