Judge David J. Cowan, Case BC521172 2022-08-11 Tentative Ruling

Please notify Dept. 1’s courtroom staff by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion. Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

Ruling: The Renewed Motion for Class Certification is DENIED. The Motion is DENIED WITHOUT PREJUDICE with respect to discovery sanctions.

If counsel do not submit on the tentative, they are encouraged to appear remotely via LA Court Connect rather than in person.

On September 12, 2013, Alma Mateos filed a Complaint against Millennium Products, Inc. and Does 1-10 stating causes of action for failure to pay overtime compensation, failure to provide meal periods, failure to provide rest periods, failure to provide itemized wage statements, failure to pay wages upon termination, and unfair competition (Bus. & Prof. Code sec. 17200).

On July 9, 2014, Mateos, Amancio Palacios, Elder Morales, Isidro Garcia, Simon Rojas, Luis Luarca, Oscar Coc, Sergio Lopez, and Franklin Guardardo filed a First Amended Consolidated Complaint against Millennium and Select Specialized Staffing, Inc. and Does 1-100 stating causes of action for failure to pay overtime compensation, failure to pay minimum wage, failure to provide meal periods, failure to provide rest periods, failure to provide itemized wage statements, failure to pay wages upon termination, forfeiture of vacation wages, failure to reimburse business expenses, failure to provide adequate seating, unfair competition, and a representative claim under the Private Attorneys General Act (Labor Code sec. 2699 et seq.)

On March 15, 2017, Judge Ann I. Jones issued a twenty-four (24) page Order denying Plaintiffs’ Motion for Class Certification.

On July 12, 2022, Judge William F. Highberger requested supplemental briefing regarding (1) whether the “death knell” doctrine permitted an appeal of Judge Jones’ March 15, 2017 Order in light of Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, and (2) whether the court should apply principles of comity under Smith v. Bayer (2011) 564 U.S. 299, 317-18 in readdressing Judge Jones’ decision in connection with the Renewed Motion.

On July 18, 2022, Plaintiffs and Defendants each filed a Supplemental Brief. Later that day, Judge Highberger referred the Renewed Motion to Department 1 for determination pursuant to Los Angeles Superior Court Local Rule 2.23.

Here, Plaintiffs have filed a Renewed Motion for Class Certification under CCP sec. 1008(b), seeking to certify a class of "current and former non-exempt employees working for Defendant as line/production, maintenance, warehouse, sanitation, and/or security employees in California, from September 12, 2009 and continuing thereafter to the present." (Motion, p. 3.) Plaintiffs further seek to certify five subclasses of employees in the overarching class:

(1) The "Overtime Subclass" of Defendant’s employees "from September 12, 2009 to August 31, 2013 who were not paid overtime wages for all hours they were suffered or permitted to work”;

(2) The "Meal Period Subclas of Defendant's employees "from September 12, 2009 and continuing thereafter to the present";

(3) The "Rest Break Subclas of Defendant's employees "from September 12, 2009 and continuing thereafter to the present who were not authorized or permitted to take [a] bona fide rest break and who were not compensated with one hour of pay when not authorized or permitted to take a bon[a] fide rest break";

(4) The "Wage Statement Subclass" of Defendant's employees "from September 12, 2009 and continuing thereafter to the present whose wage statements do not accurately reflect the actual hours worked or the proper rates of pay”; and

(5) The "Wages Paid Upon Termination Subclass" of Defendant's employees "from September 12, 2009 and continuing thereafter to the present who were not timely paid all wages due upon separation from employment." (Motion, p. 3-4.)

In their previous Motion for Class Certification filed August 15, 2016 and denied on March 15, 2017, Plaintiffs sought to certify a class of “[a]ll current and former employees of Defendant who were employed as non-exempt employees anywhere in California, from September 12, 2009 and continuing thereafter.” (Abele Decl., Exh. 2.) Plaintiffs also sought to certify five subclasses of those employees:

(1) The “failure to pay wage and overtime compensation” subclass of employees “from September 12, 2009 and continuing thereafter to August 30, 2013”;

(2) The “failure to provide meal periods” subclass of employees “from September 12, 2009 and continuing thereafter to January 1, 2015”;

(3) The “failure to provide rest periods” subclass of employees “from September 12, 2009 and continuing thereafter to January 1, 2015”;

(4) The “failure to provide accurate itemized statements and to pay wages upon termination of employment” subclass of employees “from September 12, 2009 and continuing thereafter to January 1, 2015”; and

(5) The “failure to provide adequate seating” subclass of employees “from September 12, 2009 and continuing thereafter to December 31, 2013.” (Abele Decl., Exh. 2.)

Judge Jones denied class certification for several reasons. Judge Jones found the "crux of the plaintiffs' problem" to be the absence of "official records showing whether employees worked off-the-clock or through meal or rest periods such that "a mini-trial is required to determine class membership Plaintiffs' evidence contradicting Defendant's official records consisted "solely [of] the reports of individual employees, who kept handwritten time records," which Judge Jones characterized as inadmissible hearsay. Moreover, Judge Jones noted the absence of any "admissible statistical study that would render these individual incidents generalizable to the entire class."

Judge Jones rejected Plaintiffs' argument that Defendant's use of a "new time-keeping system" suggested the earlier time-keeping system was inaccurate. Judge Jones further concluded Plaintiffs' class claims were generally "not amenable to common proof," noting a series of "distinctly 'uncommon'" employee declarations submitted to support certification. Judge Jones also noted Plaintiffs' meal break claim involved "multiple theories" differing between employees, concluding the supporting proof was "neither common nor generalizable across the entire employee group." Similarly, Plaintiffs' rest break claims would require "individualized inquiries into employees' rest break practices" since employees were "allowed to take rest breaks as needed" rather than all taking breaks at a pre-designated time.

Judge Jones declined to consider Plaintiffs' "wholly new rest period theory" that "employees were not provided two rest breaks in an eight-hour shift and a third rest break for hours worked above 13 hours," finding the issue improperly "appeared for the first time in reply." Judge Jones found "no substantial evidence . . . that a class of employees for whom seating was inadequate is ascertainable." Judge Jones also criticized the "failure of plaintiffs' counsel to appreciate the need to adduce competent and admissible evidence," but did not find counsel inadequate on that ground. Judge Jones did not "reach the issue of whether the action is manageable" because "common proof does not predominate and . . . the class is, at present, not ascertainable."

In a case pending in the Central District, “[i]f a judge who made an order or judgment is unavailable to reconsider, vacate, or modify the order or judgment, then a party must apply to the following to reconsider, vacate, or modify the order or judgment: . . . the Supervising Judge of the appropriate principal division of the court.” (LASC Local Rule 2.23.) Here, Plaintiffs are pursuing a civil case in the Central District and filed a Renewed Motion for Class Certification following Judge Jones’ denial of their original motion on March 15, 2017. Judge Jones retired in late 2021 and is unavailable. Therefore, this Renewed Motion is properly heard by the Supervising Judge of the Civil Division, sitting in Department 1. (See also Deauville Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843, 850 (Section 1008, "subdivision (b) conspicuously omits the 'same judge' requirement" applicable to motions for reconsideration under subdivision (a)).) Department 1 has authority “to reconsider, vacate, or modify the order” by Judge Jones. (LASC Local Rule 2.23.)

The parties provided Supplemental Briefs addressing whether Judge Jones’ order was final and appealable. An order denying certification of class claims, “leaving only the named plaintiff's individual claims in the trial court[,] is an appealable order under the ‘death knell’ doctrine.” (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 308.) While this denial would “otherwise be an intermediate order,” appeals are permitted because “the plaintiff would have no financial incentive to pursue his or her case to final judgment just to preserve the ability to appeal the denial of the plaintiff's class certification motion.” (Id.; In re Baycol Cases I & II (2011) 51 Cal.4th 751, 759 (“persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered.”))

In Munoz, the trial court denied class certification, leaving the employee plaintiffs with a cause of action under the Private Attorneys General Act (PAGA). The employer defendant, Chipotle, argued the death knell doctrine did not apply in that case because the “survival of the [plaintiffs’] PAGA claims,” which sought relief on “their own behalf” and “on behalf of ‘other current and former employees,'” gave the plaintiffs an “incentive ‘to push forward with the litigation notwithstanding the denial of class certification.’” (Id. at 309.)

The Court of Appeal agreed and dismissed the plaintiffs’ appeal of the order denying class certification. The Court of Appeal reasoned that potential recovery of PAGA penalties “as well as attorney fees and costs” is “ample financial incentive to pursue the remaining representative claims under the PAGA and, thereafter, pursue their appeal from the trial court's order denying class certification.” (Id. at 311.) Thus, the denial of class certification likely would not be the “death knell of the action itself,” and would not be effectively a final judgment. (Id. at 312.)

Here, like in Munoz, Plaintiffs are pursuing a PAGA claim and have taken steps to pursue those claims since Judge Jones denied class certification in 2017. Judge Jones’ denial of class certification plainly was not the “death knell of the action itself.” Defendants appear to agree the death knell doctrine is inapplicable here. Hence, Judge Jones’ decision denying class certification appears to be still “an intermediate order,” not yet appealable.

The parties also provided supplemental briefing regarding the application of principles of comity to Judge Jones’ previous order denying class certification. After review, the Court is unpersuaded comity considerations are relevant here. Defendant did not provide any cases applying principles of comity in the context of a renewed motion in the same superior court (indeed, in the same case). In Smith v. Bayer (2011) 564 U.S. 299, the Supreme Court indicated federal courts should “apply principles of comity to each other's class certification decisions when addressing a common dispute.” (Id. at 317.) As a practical matter, the same defendant may be subject to (attempted) class actions in multiple states, whether in state court or federal court; principles of comity may be applicable where litigation is spread across multiple jurisdictions. But those principles are not intended to address motions for one judge to reconsider the order of another judge of the same court.

Rather than applying principles of comity, the Court gives appropriate deference to Judge Jones’ decision by strictly assessing whether any “new or different facts, circumstances, or law” require a different conclusion. Strict compliance with the requirements of CCP sec. 1008(b) adequately protects against improper reconsideration of another judge’s orders. (See Morite of Cal. v. Superior Court (1993) 19 Cal.App.4th 485, 492-493 (“By making section 1008 expressly jurisdictional, the Legislature clearly intended to prevent courts from modifying, amending or revoking prior orders without due reconsideration.”)) The Court also recognizes the timing of this motion, renewed five years after Judge Jones’ earlier decision yet shortly after her retirement in late 2021, and the lack of a clear explanation for why Plaintiffs are renewing the Motion now.

Plaintiffs filed a renewed motion for class certification almost five years after Judge Jones’ order denying class certification. (Motion, p. 1.) A party who “made an application for an order which was refused in whole . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law.” (CCP sec. 1008(b).) A renewed motion must show “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP sec. 1008(b); see also CCP sec. 1008(e) (“This section specifies the court’s jurisdiction with regard to . . . renewals of previous motions, and applies to all . . . renewal[s] of a previous motion, whether the order deciding the previous matter or motion is interim or final.”))

Thus, Plaintiffs must show “new or different facts, circumstances, or law” supporting class certification. Plaintiffs identify two grounds for a renewed motion. First, Plaintiffs contend “new information and evidence” shows that Defendant “denied hourly workers their second and third rest breaks and second meal periods” from “2009 to the present,” asserting Defendant merely “nominally modified its policies and practices as to rest breaks and meal periods.” Second, Plaintiffs contend Defendant “engaged in spoliation" by (1) “destroying records created and used from 2009 to 2013” and (2) intentionally “intimidat[ing] its workers into opting out of the Pioneer/Belaire-West process,” hindering “Plaintiffs’ ability to contact Class Members.” Plaintiffs argue this is “good cause for the imposition of sanctions.

Plaintiffs argue the Court has inherent authority to reconsider Judge Jones’ interim decision under Le Francois v. Goel (2005) 35 Cal.4th 1094. But Le Francois is not an alternative to Section 1008. “Unless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion.” (Id. at 1108.) The Supreme Court rejected the argument that there is no meaningful “distinction between a court's acting on its own motion and its acting in response to a litigant's motion,” concluding Section 1008 would be “rendered essentially meaningless” by this reasoning. (Id. at 1107-08.) Thus, “a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section . . . 1008.” (Id.) This is not a case where reconsideration of class certification “formally beg[a]n with the court on its own motion”; Plaintiffs filed a Renewed Motion and so must comply with the requirements of CCP sec. 1008(b). (See CCP sec. 1008(e).)

Moreover, a trial court would initiate proceedings for reconsideration under Le Francois only if the court “is seriously concerned that one of its prior interim rulings might have been erroneous.” (Id.) As discussed further below, Plaintiffs have not identified errors in Judge Jones’ Order denying class certification, instead largely reasserting the same arguments and evidence previously relied upon without addressing Judge Jones’ reasoning for declining to certify the classes proposed. This is not an adequate basis for reconsideration, whether under CCP sec. 1008(b) (requiring “new or different facts” supporting relief) or under Le Francois (requiring the trial court to perceive some error in the prior ruling).

Plaintiffs point out that Judge Buckley granted leave to file this motion. Plaintiffs also contend Judge Jones denied class certification “without prejudice.” The Court does not find either contention relevant to the merits of this application.

On January 11, 2022, Judge Buckley authorized Plaintiffs to file "additional time and permission to file a thirty (30) page” long “Renewed Motion for Class Certification.” But Plaintiffs were authorized to file a renewed motion for class certification under CCP sec. 1008(b) without prior court approval, and there is no statutory deadline for a renewed motion under CCP sec. 1008(b). Judge Buckley’s order permitting this Motion does not bear on its merits at all. (See Tiffany Prods. of Cal. v. Superior Court (1933) 131 Cal.App. 729, 734-35 (“ordinarily leave to renew a motion should be predicated upon the assumption that . . . the moving party can and will produce material and relevant evidence additional to that which he presented” before and which could not have been presented earlier “‘by reason of surprise or excusable neglect of the moving party.’”)) Moreover, Judge Buckley’s order does not indicate reconsideration “formally beg[a]n with the court on its own motion” for purposes of Le Francois; Plaintiffs sought and obtained permission to file an overlong Renewed Motion.

Similarly, it does not matter here whether Judge Jones denied class certification “with prejudice” or “without prejudice.” CCP sec. 1008 controls the disposition of renewed motions “whether the order deciding the previous matter or motion [was] interim or final.” (CCP sec. 1008(e).) Moreover, Judge Jones’ decision is not yet appealable and therefore on some level not final. (Munoz, supra, 238 Cal.App.4th at 308 (“intermediate order”).) Regardless, there is no evidence—not even an attorney affidavit—supporting Plaintiffs' contentions (1) that Judge Jones denied the original Motion for Class Certification "without prejudice" or (2) that Judge Buckley "considered [it] to be denied without prejudice (Reply, p. 2.)

To the extent Plaintiffs argue Judge Jones' order must have been "without prejudice" for Judge Buckley "to allow the filing of the Renewed Motion," this argument is unpersuasive. (Reply, p. 2.) CCP sec. 1008(b) authorized Plaintiffs to file the Renewed Motion regardless of whether Judge Buckley permitted it. Rather, on January 11, 2022, Judge Buckley authorized Plaintiffs to file "additional time and permission to file a thirty (30) page motion,” as Plaintiffs had requested. Plaintiffs have not explained how Judge Buckley’s order permitting expanded briefing would indicate Judge Jones’ underlying order was made without prejudice.

Thus, Plaintiffs’ Renewed Motion must comply with Section 1008(b). Section 1008(b) requires the moving party submit an affidavit identifying, among other things, “what new or different facts, circumstances, or law” support the order sought. “Both a motion for reconsideration under [section 1008] subdivision (a), and a so-called 'renewed' motion under [CCP] section 1008, subdivision (b), must be accompanied by a supporting affidavit" identifying "new or different facts, circumstances, or law." (Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 296.) A renewed motion is "not valid" when it is "not supported by an affidavit setting forth new or different facts, circumstances, or law." (Id. at 297.)

Here, Plaintiffs submitted several declarations—see generally Compendium of Attorney Declarations, Exh. 1-4 and Compendium of Declarations, Exh. 1-25—which do not clearly identify “new or different facts” supporting class certification. In particular, the attorney affidavits submitted primarily allege facts relevant to qualification as class counsel and/or representatives. (Ozzello Decl., para. 5-18; Hennig Decl., para. 5-13; Ruiz Decl., para. 5-13; You Decl., para. 10-17; see Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327 (“courts consistently look to . . . the declarations of attorneys representing the plaintiff class” to determine whether claims are amenable to class treatment))

Only the Declaration of Helen You addresses new evidence supporting class certification. Ms. You alleges Plaintiffs “conducted significant discovery regarding Defendant's wage and hour practices” after denial of class certification. (You Decl., para. 8.) Plaintiffs obtained "further testimony from Defendant's Person Most Qualified and Chief Executive Officer," George Thomas Dave, "production of time card records and payroll data, and employee handbooks." (You Decl., para. 8.) Ms. You alleges this new evidence, "corroborated by witness declarations, executed after March 15, 2017, [shows that] numerous employees from 2017-2019 continued to experience meal and rest break violations and were denied premium pay for missed breaks." (You Decl., para. 8; see Compendium of Declarations, Exh. 16-25 (post-2016 declarations).) Ms. You also alleges Plaintiffs discovered "since March 15, 2017" that Defendant "engaged in intentional spoliation of payroll records and witness intimidation." (You Decl., para. 9.)

Section 1008 generally “require[s] a party filing . . . a renewed application to show diligence with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) The “information must be such that the moving party could not, with reasonable diligence, have discovered or produced it” in earlier proceedings. (NYT Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213.) Here, Plaintiffs did not offer a “satisfactory explanation for not having presented the new or different information earlier.”

Plaintiffs do not indicate when they discovered the above-referenced evidence (particularly time-card records, payroll data, or employee handbooks).[1] Plaintiffs allegedly obtained the evidence sometime “[s]ince March 15, 2017,” i.e., at some point in the last five years. (You Decl., para. 8.) If Plaintiffs discovered this evidence years ago (e.g., in 2019 or 2020), Plaintiffs have not explained the delay in renewing this motion for class certification.

On the other hand, if Plaintiffs only discovered this “new” evidence shortly before filing this Motion (e.g., in 2021), Plaintiffs must explain why they only now discovered this evidence after years of litigation and discovery. Evidence is not “new” if “it was available . . . throughout the discovery process and was easily obtainable.” (See NYT, supra, 135 Cal.App.4th at 213.) The Court has no reason to think the evidence was not “easily obtainable” during the thorough discovery conducted in this case.

Significantly, evidence that “employees from 2017-2019 continued to experience meal and rest break violations and were denied premium pay for missed breaks” does not constitute “new or different facts” supporting certification of classes at issue in the original Motion for Class Certification, which are based on employees injured between 2009 and 2013 or 2015 (depending on subclass). (Abele Decl., Exh. 2.) In resolving a “Renewed Motion” under CCP sec. 1008(b), the Court does not consider whether to certify classes not presented in the original Motion. (CCP sec. 1008(b) (renewed motion “for the same order” previously sought))

To the extent Plaintiffs seek certification of new or expanded classes not considered by Judge Jones, the Court finds those new classes outside the scope of a renewed motion. The distinction between a motion for class certification (CCP sec. 382) and “renewed” motion for class certification (CCP sec. 1008) bears emphasis. Department 1 resolves this Motion because Judge Jones, who decided the original Motion for Class Certification, retired and is unavailable. (LASC Local Rule 2.23.) Department 1 is limited to determining whether to issue the “same order” requested from Judge Jones, i.e., whether to certify the previously proposed classes.

In sum, Plaintiffs did not provide an affidavit identifying new evidence or explaining why they “could not, with reasonable diligence, have discovered or produced” any of this evidence in support of the prior class certification motion. Instead, Plaintiffs filed forty-six (46) volumes of evidence—three volumes of deposition transcripts, four volumes of supporting declarations (one devoted to attorney declarations), and thirty-nine (39) volumes of exhibits. Despite the absence of that required affidavit, the Court has attempted to determine whether any new or different facts, circumstances, or law were provided.

Initially, much of the deposition testimony offered comes from depositions taken before Plaintiffs filed the Motion for Class Certification on August 15, 2016. (Compendium of Depo. Testimony, Exh. 1 (7/28/15 Depo. of Alma Mateos); Exh. 2 (7/22/15 Depo. of Amancio Palacios); Exh. 3 (7/21/15 Depo. of Elder Morales); Exh. 4 (7/21/15 Depo. of Sergio Lopez); Exh. 5 (7/22/15 Depo. of Isidro Garcia); Exh. 7 (1/15/15 Depo. of Lorina Craig for ADP); Exh. 8 (7/25/16 Depo. of Ramon Canek).)) Plaintiffs do not indicate whether any of this deposition testimony was offered in support of the original Motion. To the extent any of this deposition testimony was not previously provided, Plaintiffs have not attempted to show diligence in offering this information five years later. To the extent any of the testimony was offered to support the original Motion, the testimony would not establish “new or different” facts.

Plaintiffs similarly submitted fifteen employee declarations executed before the Motion for Class Certification was filed. (Compendium of Declarations, Exh. 1 (8/8/16 Mateo Decl.); Exh. 2 (7/21/16 Palacios Decl.); Exh. 3 (7/21/16 Morales Decl.); Exh. 4 (7/21/16 Garcia Decl.); Exh. 5 (7/21/16 Rojas Decl.); Exh. 6 (7/21/16 Luarca Decl.); Exh. 7 (7/21/16 Coc Decl.); Exh. 8 (7/21/16 Lopez Decl.); Exh. 9 (8/9/16 Guardado Decl.); Exh. 10 (7/26/16 Escobar Decl.); Exh. 11 (7/28/16 Blanco Decl.); Exh. 12 (8/4/16 Perez Decl.); Exh. 13 (7/27/16 Vargas Decl.); Exh. 14 (7/26/16 Cueva Decl.); Exh. 15 (8/6/16 Cortez Decl.)) Many of these employee declarations were submitted in support of the original Motion (as discussed further below), and for that reason are not new or different. Moreover, to the extent the declarations were not offered in support of the original Motion, Plaintiffs have not shown diligence in producing these declarations several years later.

While Plaintiffs submitted some new declarations, the declarations are largely executed by employees outside the proposed class periods at issue here (i.e., by employees hired after January 2015, the latest date contemplated by the original subclasses). (Compendium of Declarations, Exh. 16-17 (Juan Manuel Duran Garcia Decls. (GT's Living Foods employee "more or less from September 2018 to February 2019," no description of check-in system)); Exh. 18 (Villalta Decl., para. 4 (Millennium employee "since more or less 2015 until 2017")); Exh. 20 (Hector Perez Decl., para. 4-6 (GT's Living Foods employee "for more or less one year in 2019," no description of check-in system)); Exh. 21 (Cesar Perez Decl., para. 4 (Millennium employee "from more or less April of 2016 until February 2019," no description of check-in system)); Exh. 23 (Huete Decl., para. 4-6 (GT's Living Foods employee "from around March 2018 to November 2018," no description of check-in system)); Exh. 24 (Narciso Decl., para. 4-6 (GT's Living Foods employee for “one year in late 2017 into early 2018" under biometric check-in system)); Exh. 25 (Carrillo Decl., para. 4-6 (GT's Living Foods employee "for approximately 6 or 7 months in 2017" under biometric check-in system)).) The declarations provide new or different information concerning Defendants’ practices, but do not address practices within the class time period at issue.

Plaintiffs also provided new deposition testimony from George Thomas Dave, the CEO and founder of Millennium and GT’s Living Foods, and Mark House, an employee of GT’s Living Foods. However, the new deposition testimony cited in support of the Motion largely concerns practices outside the relevant time period or is cumulative of old evidence, further supporting facts previously asserted.

For example, while Plaintiffs provided three transcripts from depositions of Mark House, they rely on only one of these transcripts for testimony concerning rest break practices at the Hampton facility in 2021. (Motion, p. 6 fn. 41 (citing Compendium of Depo. Testimony, Exh. 9.1 (8/20/21 Depo. of Mark House, pp. 152:15-156:3.))) Evidence of Defendant’s rest break practices in 2021 does not support certification of subclasses of employees experiencing rest break violations under different policies between September 2009 and January 2015. Moreover, it is unclear House has any personal knowledge regarding Defendant’s operations during the relevant time period; the transcripts provided indicate House “co-manag[ed] the scheduling and demand planning team” for GT’s Living Foods “between March 2015 and late 2017,” but do not suggest House worked for Defendant between September 2009 and January 2015. (Compendium of Depo. Testimony, Exh. 9.1 (8/20/21 House Depo., p. 68:8-69:1); see also Exh. 9.2 (11/19/21 House Depo., p. 261:22-262:2 (answering question about data for "2015 starting in Quarter 2 when you've been working there..."))

Plaintiffs also provided five transcripts from depositions of Dave in 2014, 2016, 2019, 2020 and 2021. Plaintiffs relied on Dave’s 2014 and 2016 deposition testimony in support of the original Motion for Class Certification; these transcripts do not now convey “new or different facts.” While the 2019, 2020, and 2021 depositions postdate the Motion for Class Certification, and could in principle provide new or different facts, Plaintiffs largely rely on these depositions merely to further establish facts asserted in support of the original Motion, e.g., further testimony regarding Defendants’ original check-in system used between 2009 and 2013 and Canek’s deletion of the check-in sheets. (Compendium of Depo. Testimony, Exh. 6.5 (11/12/2021 Dave Depo., pp. 76:21-79:12, 87:10-90:9, 93:9-94:21).) Dave’s new testimony sheds little light on the deletion of the check-in records and is largely consistent with his earlier testimony in 2016 on this topic; the Court returns to this issue in addressing Plaintiffs’ spoliation argument concerning destruction of check-in sheets. (See infra at pp. 17-19.) Plaintiffs also rely on this testimony to support a separate request for discovery sanctions based on interference with a Belaire-West notice in 2019, two years after the Motion for Class Certification was denied. (Compendium of Depo. Testimony, Exh. 6.5 (11/12/2021 Dave Depo., pp. 223:15-227:2).) At this juncture, the parties have not adequately identified “new or different facts” presented in Dave’s 2019, 2020, and 2021 depositions.

Finally, Plaintiffs submitted 39 volumes of exhibits, but did not attempt to identify new evidence, indicate when any evidence was discovered, or otherwise distinguish new evidence from evidence offered with the original Motion for Class Certification. As a result, it is unclear what “new or different” facts Plaintiffs claim to provide, and further unclear that Plaintiffs were diligent in providing that information. Plaintiffs’ statutory burden to provide “new or different facts, circumstances, or law” cannot be satisfied by filing dozens of volumes of evidence without considering whether that evidence is “new or different” than what supported the original Motion.

For example, Plaintiffs provide nine volumes of payroll data and master lists for Millennium Products between September 2012 and August 2013. (Compendium of Exhibits, Exh. 24-26.) Plaintiffs did not indicate when they discovered this evidence. (You Decl., para. 8 (alleging new evidence discovered “[s]ince March 15, 2017”)) By extension, Plaintiffs have not shown that they were diligent in bringing this evidence to the Court’s attention. To the Court’s knowledge, Plaintiffs could have discovered this payroll data in April 2017 or December 2021; either is possible. The necessary showing of diligence would differ depending on the date of discovery, but regardless, Plaintiffs have not attempted to show diligence in producing the evidence.

Therefore, though Plaintiffs failed to provide an affidavit identifying new or different facts, circumstances, or law as required by CCP sec. 1008(b), the Court nevertheless considered the several volumes of evidence supplied by Plaintiffs. For the most part, Plaintiffs failed to identify new or different facts, and further failed to show diligence in providing their evidence of new or different facts.[2] Plaintiffs therefore have not met their burden under CCP sec. 1008(b).

At this juncture, the Court briefly addresses the ascertainability of Plaintiffs’ previously proposed classes. Judge Jones found Plaintiffs’ classes were not ascertainable because it would require “a mini-trial . . . to determine class membership.” Judge Jones observed the employees lacked reliable, admissible time records—merely handwritten records constituting inadmissible hearsay—and indicated Plaintiffs failed to provide any sort of “statistical study that would render these individual incidents generalizable to the entire class.”[3] (See Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 333 (California courts often consider “pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.”))

Plaintiffs acknowledge statistical evidence and sampling evidence is relevant, as noted by Judge Jones, yet did not identify new or different statistical or sampling evidence supporting ascertainability of the classes proposed.[4] (Reply, p. 3.) Instead, Plaintiffs argue “class members are readily identified from Defendant’s own records . . . that have been produced to Plaintiffs.” (Motion, p. 11.) Specifically, Plaintiffs identify the Pioneer/Belaire-West Notice Lists and GT's Living Foods’ July 2021 Employee List as evidence "establish[ing] both ascertainability and numerosity” of the classes. (Motion, p. 11 fn. 62; Compendium of Evidence, Exh. 19, 23.)

Plaintiffs argue class ascertainability “is satisfied by mere reference to employment records,” relying on ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277. (Reply, p. 3-4; id. at 303 (a “class is ascertainable if a plaintiff supplies a reasonable means of identifying potential class members and the class is defined in terms of objective characteristics and common transactional facts sufficient to allow a class member to identify himself or herself as having a right to recover based on that description.”))Plaintiffs made the exact same argument, albeit without reference to ABM Industries, in their previous Motion for Class Certification.[5]

Judge Jones rejected Plaintiffs’ position that "ascertain[ing] the members of the class . . . would require only that a list of employees be produced." (3/15/17 Order, p. 7.) Judge Jones observed that Plaintiffs’ various subclasses could not be readily ascertained from a mere employee list because the only official records available showed that “no employee worked more than eight hours a day." (3/15/17, p. 6-7.) The determination of which employees fell into which subclasses would require heavily individualized inquiries. Judge Jones found no "sufficient evidence . . . that the events recorded by a handful of employees on a smaller handful of dates can be extrapolated to the class claimed" and "provide no method by which those affected class members can be ascertained." (3/15/17 Order, p. 8.)

Plaintiffs argue Judge Jones was “incorrect” in finding the class could not be ascertained without “official records showing whether employees worked off-the-clock or through meal or rest periods,” arguing the “viability of the asserted class claims as to individual putative class members is completely irrelevant in the ascertainability analysis.” (Reply, p. 3-4.) Plaintiffs contend Judge Jones erred because the overarching class of “current and former nonexempt employees working for Defendant as line/production, maintenance, warehouse, sanitation, and/or security employees in California from September 12, 2009 to the present” actually can be “readily identified” from Defendant’s records. (Reply, p. 4.) Plaintiffs also appear to assert the “official” records are “fabricated,” an argument previously asserted in the original Motion for Class Certification. (Renewed Motion, p. 5, 23; Abele Decl., Exh. 2 (Motion, p. 3, 5).)

But this argument fails to address ascertainability of the five subclasses Plaintiffs also seek to certify. The Court agrees the overarching class may be ascertainable solely from Defendant’s employee records, as the overarching class is tethered to each employee’s job assignment and status and duration of employment, likely ascertainable from employment records. But Plaintiffs have not shown any of the subclasses based on Labor Code violations are readily ascertainable. (See Motion, p. 11; Reply, p. 3-4 (arguments pertaining only to overarching class).) Judge Jones previously found the subclasses were not ascertainable, and critically, Plaintiffs do not identify new or different facts, circumstances, or law supporting a different conclusion. (CCP sec. 1008(b).) Plaintiffs instead focus exclusively on the overarching class. This is inadequate to show the subclasses are ascertainable. As Judge Jones observed five years ago, Plaintiffs have “provide[d] no method by which those affected class members can be ascertained.”

The Court will not address other aspects of class certification, such as the existence of a community of interest, in part because Plaintiffs’ proposed subclasses are still not ascertainable and in part because the Renewed Motion is defective under CCP sec. 1008(b). The Court reviews ascertainability above as an example of a pattern in the Renewed Motion: non-engagement with Judge Jones’ Order. Plaintiffs cannot reassert arguments rejected by Judge Jones, or reintroduce the same facts presented to Judge Jones, without addressing Judge Jones’ conclusions regarding those arguments and facts. CCP sec. 1008(b) does not permit review of the original Motion on a blank slate; it requires “new or different facts, circumstances, or law” that support a different order than the one entered by the original judge.

Plaintiffs also argue Defendants "destroyed, or recklessly lost" time records, "including check-in sheets used . . . between 2009 and 2013 to record the times its employees began and stopped working, and took lunch and for how long." (Motion, p. 26.) Plaintiffs rely on testimony that the documents were lost or destroyed in either 2013 or 2014. (Motion, p. 26-27.) But Judge Jones already considered this argument, specifically referencing deposition testimony from Defendant's CEO "that the check-in sheets 'no longer exist,'" that he "th[ought] they were misplaced or misfiled," and "that information regarding employees’ clock-in and clock-out times was stored on the company computer of a manager . . . but was 'wiped out' by the manager and was not backed-up." (3/15/17 Order, p. 10 fn. 13.) Closer comparison of the evidence confirms no new facts have been presented.

Plaintiffs’ Renewed Motion relies on deposition testimony from Defendant’s PMQ and CEO, George Thomas Dave, and manager Raymond Canek. Plaintiffs rely on Dave’s deposition testimony that Millennium used check-in sheets generated by Canek since 2009 and had access to those check-in sheets during litigation in 2012, but lost the records because Canek “wiped” his computer and cell phone when he left Millennium in January 2014 without backing up the records, as well as Canek’s deposition testimony denying this accusation. (Motion, p. 26-27 (citing Compendium of Deposition Testimony, Exh. 6.2 (2/19/16 Dave Depo., pp. 55:18-56:10, 67:1-69:7, 74:21-79:5); Exh. 8 (7/25/16 Canek Depo., p. 13:1-17).) Plaintiffs’ original Motion for Class Certification also relied on Dave’s 2016 deposition testimony that Millennium “lost or misplaced check-in sheets” because “Canek deleted time sheets when he quit,” and thus “[f]rom 2009 to 2013 [Millennium had] no records of times that meal breaks started or ended.” (See Abele Decl., Exh. 2 (Motion for Class Certification, p. 2 fn. 12)) Plaintiffs also relied on Canek’s 2016 deposition testimony denying the accusation that he deleted files. (Id.)

While Plaintiffs have supplied new deposition transcripts from 2019, 2020, and 2021 in support of the Renewed Motion, the Court has reviewed these transcripts and find that they do not provide any new facts regarding spoliation of Defendant’s check-in sheets.[6] Dave’s later testimony in 2020 and 2021 is consistent with his testimony in 2016 that Canek was primarily responsible for generating check-in sheets and timesheets, but disposed of the check-in sheets by wiping his computer and cell phone in January 2013. Judge Jones was aware of Dave’s 2016 testimony on that point and Canek’s denial of this accusation. (3/15/17 Order, p. 10 fn. 13.) Dave’s later consistent testimony did not supply “new or different facts.”

The Court does not understand why Plaintiffs only now seek sanctions against Defendant over six years after Dave testified the check-in sheets were “wiped” by Canek and over five years after Canek denied that he wiped the sheets. Plaintiffs were not diligent in seeking relief for spoliation, particularly where Plaintiffs’ prior Motion for Class Certification raised the issue of deleted records without seeking sanctions. Plaintiffs’ long, unexplained delay in acting on this information weighs against reconsideration. (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690 (finding reconsideration not supported by party’s “knowledge [which] was obviously always within his possession, and no satisfactory explanation appeared for not bringing it out earlier.”))

The Court is not concluding sanctions are unavailable—the bench officer assigned to the case is better-positioned to determine whether to impose sanctions. The Court is merely finding Plaintiffs cannot rely on evidence of spoliation from several years ago to obtain reconsideration of Judge Jones’ order, particularly where Plaintiffs previously presented Dave’s 2016 spoliation testimony to Judge Jones. (CCP sec. 1008(b) (requiring “new or different facts”)) The Court expresses no view as to the merits (including timeliness) of a potential motion for sanctions. (CCP sec. 2023.030 (authorizing motion for "sanctions against anyone engaging in conduct that is a misuse of the discovery process" without statutory deadline))

To the extent Plaintiffs renew their Motion for Class Certification on the grounds that Defendant intimidated employees out of the Belaire-West notification process, this argument is rejected. Plaintiffs’ Belaire-West notice issued in April 2019, two years after Judge Jones denied class certification. (Compendium of Declarations, Exh. 16 (Garcia Decl., para. 9 ("More or less in April of 2019 I received a notification letter about this case...")) While employee intimidation is obviously impermissible and undesirable, Plaintiffs do not explain how Defendant’s alleged interference with the April 2019 Belaire-West notice supports reconsideration of Judge Jones’ March 2017 order denying certification of classes of current and former employees working for Defendant between 2009 and 2015.

This interference may be a “new circumstance,” but it does not appear to support class certification. Plaintiffs should move for sanctions (if appropriate) based on this interference; Defendant’s alleged misconduct does not and cannot fill the evidentiary gaps in Plaintiffs’ class certification showing (at least without imposition of issue or evidence sanctions). As discussed above, Department 1 is not now considering whether to impose issue or evidence sanctions; that determination is reserved for the bench officer assigned to this case, Judge Highberger. As discussed, Department 1 is considering only whether to certify the classes previously presented to Judge Jones, on the grounds that Judge Jones is unavailable due to retirement. (CCP sec. 1008(b) (renewed motion seeks “the same order.”))

Plaintiffs have not yet addressed parallel, but apparently now resolved, litigation over Defendant’s check-in system. In Los Angeles Superior Court civil case BC662114 (Cueva v. Millennium Products, Inc.), plaintiffs Blanca Cueva, Geovanny Cortez, Maria Lara, Kelyn Vargas, Mayra Blanco, and Antonio Escobar Fuentes (aka Maycol Escobar) sued Defendant for failure to pay overtime, minimum wage, wages due upon discharge or resignation, and failure to provide meal periods, rest breaks, accurate itemized wage statements, or adequate seating, and for unfair competition (Bus. & Prof. Code sec. 17200). (RFJN, Exh. 12.) On March 30, 2022, following “an eight-day bench trial beginning on November 30, 2021,” Judge Bowick issued a written decision in Defendant’s favor containing detailed findings of fact. (RFJN, Exh. 13.)

As relevant here, Judge Bowick made several factual findings regarding the operation of Defendant's check-in system between 2009 and 2013. Judge Bowick found that "[e]mployees were checked-in by . . . Canek in the morning and placed on a spreadsheet for each employee," and "required to check out with [Canek] if they left the work premises," which also "was placed on the check-in/check-out sheets." "Time was entered by Mr. Canek," though "Dave also did it on occasion, and transferred the time onto time sheets." Judge Bowick found Canek "left Defendant's employment abruptly," and when "Dave got Mr. Canek's computer back, there were no archived check-in sheets." Judge Bowick also made several factual findings concerning employees taking break periods and relevant policies for those breaks. Judge Bowick concluded "that Plaintiffs were paid for all hours worked” and “were not entitled to overtime pay, as they did not work overtime during the relevant time periods." Judge Bowick also concluded the plaintiffs "were provided with proper meal and rest periods as required under the law" such that they were "not entitled to meal period or rest period premium payments."

The Court identifies these findings not for their truth, but to show certain employees have pursued litigation over Defendant’s check-in system between 2009 and 2013 to judgment, including issues relating to Canek’s deletion of Defendant’s check-in sheets and Defendant’s break policies. Indeed, Judge Bowick’s decision followed a bench trial prosecuted by Plaintiff Mateos’ counsel. (RFJN, Exh. 13 (Cueva plaintiffs "were represented by Mark A. Ozzello, Esq. and Calvin A. Marshall, Esq.") see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882-883 ("courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.”))

Defendant accurately observes that several plaintiffs from Cueva submitted declarations in support of the Renewed Motion and original Motion for Class Certification.[7] Most of these declarations are now contradicted by Judge Bowick’s findings of fact. For example, Mayra Blanco alleges she "usually worked between 70 to 80 hours per week," "more than 14 hours per day," without sufficient documentation to verify whether she received proper overtime pay. (Compendium of Declarations, Exh. 12 (Blanco Decl., para. 4-5).) Blanco alleges it "was not possible for [her] to take even two 10-minute break periods in a work shift of 8 hours" and alleges her lunch periods were interrupted and bound to company premises. (Id. at para. 7-8.) The other Cueva plaintiffs’ Declarations similarly allege overtime hours and inadequate or absent meal and rest breaks.

By contrast, Judge Bowick found the plaintiffs (including Blanco) “did not work overtime” and “were provided with proper meal and rest periods as required under the law.” While class certification does not depend on the merits of the underlying claims, the class certification is inadequately by supported by heavily outdated evidence (most of Plaintiffs’ employee declarations were executed in 2016) contradicted by Judge Bowick’s recent decision after trial. For their part, Plaintiffs declined to address Cueva in the Reply. The Court does not intend to certify further class claims against Defendant based on representations of employees whose substantially similar claims against Defendant were just adversely resolved on the merits.

The Court is also aware of two class actions pending against Defendant GT’s Living Foods before Judge Highberger in the same courtroom as the instant case—civil cases 19STCV42505 (Fernando Gonzalez, et al. v. GT’s Living Foods, LLC) and 19STCV43740 (Carolina Mendoza v. GT’s Living Foods, LLC).[8] The Court, on its own motion, takes judicial notice of the Complaints in both cases.[9] Review of these Complaints reveals proposed classes substantially overlapping with Plaintiffs’ proposed classes to the extent those classes include Defendant’s employees after 2015.

In civil case 19STCV42505, Fernando Gonzalez and Fernando Escareno filed a class action complaint against GT's Living Foods and unnamed Does. Gonzalez and Escareno seek to certify a class of "current and former non-exempt employees, who work or worked for Defendant at any time between March 16, 2017 to the present," and subclasses of those employees "who were paid under the Double Time Policy" or " subjected to the Second Meal Period Policy.” (Complaint, para. 38.) The plaintiffs allege GT’s Living Foods had a "practice of paying . . . one and one-half times the regular rate of pay for hours worked in excess of 12-hours in a workday" instead of "the required double time pay"—the “Double Time Policy.” (Complaint, para. 27.) The plaintiffs also describe “a uniform meal period policy that did not provide . . . a second meal period for shifts greater than 10 hours”—the “Second Meal Period Policy.” (Complaint, para. 33.)

In civil case 19STCV43740, Carolina Mendoza filed a class action complaint against GT's Living Foods and unnamed Does. Mendoza "seeks to represent Classes composed of" Defendant's current and former employees "within the four years prior to the filing of this complaint [on December 5, 2019] to the present" who experienced failures to pay overtime wages, pay wages due at separation, provide itemized wage statements, maintain records, indemnify business expenses, and provide required meal and rest breaks. (Complaint, para. 33.)

These potential classes appear to overlap with Plaintiffs’ proposed classes. For example, Plaintiffs seek to certify subclasses of Defendants’ current and former non-exempt employees “from September 12, 2009 and continuing thereafter to the present” who “were not authorized or permitted to take [a] bona fide rest break” or meal break “and who were not compensated with one hour of pay when not authorized or permitted to take a bon[a] fide rest break” or meal break. (Motion, p. 2-3; compare 19STCV43740 Complaint, para. 33.b. (class of current and former employees from December 5, 2015 to the present who were denied required meal periods or payments for lost breaks); para. 33.c. (same for rest periods); compare 19STCV42505 Complaint, para. 38 (class of current and former employees between March 15, 2017 to the present . . . who were subjected to the Second Meal Period Policy" that denied required meal breaks for shifts over ten hours).)

Plaintiffs also seek to certify a subclass of current and former employees from September 12, 2009 to the present “whose wage statements do not accurately reflect the actual hours worked or the proper rates of pay.” (Motion, p. 3-4; compare 19STCV43740 Complaint, para. 33.f. (class from December 9, 2015 to the present “who received an inaccurate wage statement”); compare 19STCV42505 Complaint, para. 38 (class of current and former employees "between March 16, 2016 to the present and who were paid under the Double Time Policy"); see para. 35 (alleging Defendants "failed to provide wage statements which accurately showed actual hours worked and wages due to the Double Time Policy").)

Plaintiffs seek to certify another subclass of those employees “who were not timely paid all wages due upon separation from employment.” (Motion, p. 4; compare 19STCV43740 Complaint, para. 33.d. (class of employees from December 9, 2015 to the present who “separated their employment from Defendant and have not been paid wages" due upon separation); see also 19STCV42505 Complaint, para. 36 (alleging Defendants "failed and refused to timely pay all compensation due . . . to Class Members, as a result of the Double Time Policy, whose employment terminated during the relevant time period.")) Again, Plaintiffs’ proposed class appears to overlap with the classes proposed in these pending cases.

The Court reviews these cases to show that the denial of this Renewed Motion will not be the end of class litigation against Defendants. The Court is not concluding that Plaintiffs’ newly proposed classes based on post-2015 conduct should not be certified; the Court did not address certification of those claims. Indeed, the pendency of multiple yet-to-be certified class actions does not weigh against certification. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1034 (noting risk of multiple class actions "one after another dismissed until one trial court concludes there is some basis for liability and . . . approves class certification.”))

Rather, the Court is concluding that certification of brand-new classes is not properly sought by a Renewed Motion under CCP sec. 1008(b) in Department 1. The authority the undersigned exercises in this case is defined by Local Rule 2.23, permitting the Supervising Judge “to reconsider, vacate, or modify the order or judgment” put at issue by the Renewed Motion solely because Judge Jones is unavailable. Local Rule 2.23 and CCP sec. 1008(b) do not authorize Department 1, on a Renewed Motion, to consider certification of classes not put at issue by the original Motion decided by Judge Jones. New classes should be addressed by a proper Motion for Class Certification.

The two cases discussed above indicate other judges may already be considering whether to certify classes which overlap with Plaintiffs’ proposed classes. Department 1’s refusal to exceed the authority granted under Local Rule 2.23 does not impact potential certification of these classes, which could provide relief to many of the same employees that Plaintiffs seek to represent. Plaintiffs’ Renewed Motion is substantially defective as to Plaintiffs’ proposed classes of employees between 2009 and 2015, but this denial does not bear on the merits of classes of post-2015 employees proposed in other pending cases.

In denying Plaintiffs’ renewed request for certification of the classes presented to Judge Jones, the Court emphasizes that Plaintiffs’ Renewed Motion failed to comply with CCP sec. 1008(b). Moreover, Plaintiffs did not address compliance with CCP sec. 1008(b) in their Reply, even though Defendants pointed out Plaintiffs’ noncompliance. (Opposition, p. 18, 20-24 (discussing compliance with CCP sec. 1008(b)); Reply (no reference to CCP sec. 1008 or requirement to show “new or different facts”).) Any “‘renewed’ motion under section 1008, subdivision (b), must be accompanied by a supporting affidavit” identifying “new or different facts, circumstances, or law.” (Rowan, supra, 54 Cal.App.5th at 296.) A renewed motion is “not valid” if it is “not supported by an affidavit setting forth new or different facts, circumstances, or law.” (Id. (emphasis added); CCP sec. 1008(b) “For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside.”))

Plaintiffs failed to provide the required affidavit setting forth new or different facts relevant to the classes proposed to Judge Jones. Plaintiffs provided new deposition testimony from Dave concerning the loss of Millennium’s check-in sheets, but this deposition testimony was not “new or different” from Dave’s earlier deposition testimony provided to Judge Jones. Plaintiffs did not provide other “new or different facts, circumstances, or law” supporting certification of the classes proposed to Judge Jones; instead, Plaintiffs produced new evidence concerning Defendants’ policies after 2015, outside the scope of the classes at issue, and argued Defendants interfered with Belaire-West notices issued in 2019, which would not establish any interference material to the original Motion for Class Certification.

In sum, Plaintiffs failed to provide “new or different facts, circumstances, or law” that support certification of the proposed class and subclasses. The Renewed Motion for Class Certification is DENIED.

If counsel do not submit on the tentative, they are encouraged to appear remotely via LA Court Connect rather than in person.

[1] The Court addresses further deposition testimony from Mr. Dave in discussing spoliation below. Much of Mr. Dave’s “further” deposition testimony is repetitive of his 2016 deposition testimony supplied before, and submitted in support of, the first Motion for Class Certification. The requirement to provide “a satisfactory explanation for not having presented the new or different information earlier” is logically inapplicable where the information provided is neither “new” nor “different.” (Even Zohar, supra, 61 Cal.4th at 839.)

[2] Plaintiffs provided two new employee declarations addressing the relevant time period between 2009 and 2015. (Compendium of Declarations, Exh. 19 (Gonzalez Decl., para. 4-7 (Millennium employee "since approximately September 2011 until May 2017 describing check-in sheet system pre-2014); Exh. 22 (Mendez Decl., para. 4 (Millennium and GT's Living Foods employee "from around 2009 until the middle of April 2019," no description of check-in system)) While the Court recognizes the existence of new testimony from Gonzalez and Mendez concerning practices between 2009 and 2015, Plaintiffs have not shown diligence by explaining why this evidence could not have been submitted earlier given these employees were hired by Millennium in 2011 and 2009, and moreover the declarations are largely repetitive of earlier declarations concerning the same practices.

[3] Plaintiffs also argue evidence submitted in support of class certification “need not be admissible at trial or summary judgment.” (Reply, p. 3, p. 11.) However, no California court has endorsed this view. (Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 245 (vacating order certifying class due to "absence of supporting declarations or other admissible evidence” supporting certification.)) It appears the Ninth Circuit does not require admissible evidence in support of class certification, in part because “the evidence needed to prove a class’s case often lies in a defendant’s possession and may be obtained only through discovery.” (Sali v. Corona Regional Medical Center (9th Cir. 2018) 909 F.3d 996, 1004-05 (in federal litigation, “[i]nadmissibility alone is not a proper basis to reject evidence submitted in support of class certification.”))

The Court finds Sali distinguishable; class actions in state courts are materially different from class actions in federal courts. FRCP “rule 23 encourages certification decisions early in the proceedings, when discovery is incomplete and facts bearing on the propriety of maintaining a class action may be unknown, and . . . it contemplates that initial orders may be conditional and altered or amended before a judgment on the merits.” (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 813.) By contrast, California courts “ha[ve] the option of deferring any decision on class issues until a fair opportunity for that discovery has been afforded,” and in appropriate cases permit parties to obtain discovery supporting a motion for class certification. (Id. at 815-816.) And here, the parties have engaged in years of discovery since Judge Jones denied class certification in 2017. There is no compelling excuse for providing inadmissible evidence at this point in the litigation.

[4] Plaintiffs offer 10% sampling of the “Fabricated Timesheets.” (Motion, p. 23 fn. 101.) However, Plaintiffs repeatedly argue the “Fabricated Timesheets” are inaccurate because they do not reflect the hours employees actually worked. Hence, it is not possible to ascertain, from sampling of these timesheets, which employees were not properly compensated. The timesheets, according to Plaintiffs, do not offer useful information about hours worked.

[5] See 2/7/22 Motion for Class Certification, p. 11 (“Here, class members are readily identified from Defendant’s own records (which it is required to maintain pursuant to 8 Cal. Code Regs. § 11010(7)(A)) that have been produced to Plaintiffs. The identities of the employees, and their contact information has already been provided: the putative class has already been ascertained.”); compare Abele Decl., Exh. 2 (Motion for Class Certification, p. 17 (“class members are easily identified from Defendant’s own records – records that Defendant is required to maintain. 8 Cal. Code Regs. § 11010(7)(A). Here, the identities of the employees, and their contact information is not just readily available, it has already been provided.”)

[6] Compendium of Depo. Testimony, Exh. 6.4 (12/11/20 Dave Depo., pp. 39:23-40:7, 84:18-85:8 and 135:24-137:15 (testifying Canek checked employees in out on arrival and departure and for meal breaks, but not necessarily rest breaks due to discretionary break policy); p. 138:8-140:2 (describing mid-2013 transition from check-in process with Canek to current biometric system); p. 174:13-24 (testifying Millennium lost "some" payroll data for the second half of 2014); see Exh. 6.5 (11/12/21 Dave Depo., pp. 22:4-21 (distinguishing timesheets from check-in sheets); 23:3-21 (testifying that "check-in sheets were thrown awa after "each period" once "the information on the check-in sheet was transferred to the timesheet"); 28:5-21 and p. 62:3-10 (alleging Canek handled check-in sheets and created timesheets); pp. 77:20-79:12 (testifying that Canek "wiped his devices" when he left Millennium and that "there was an opportunity for [documents] to be misplaced" while moving offices and auditing files); see generally Exh. 6.3 (11/1/19 Dave Depo. (testifying to implementation and functionality of biometric timekeeping system, break policies modified after adoption of biometric system in mid-2013, enforcement of break policies, and details of various employee roles in GT Foods, but generally not addressing check-in sheets or pre-biometric system timekeeping))

[7] Compendium of Declarations, Exh. 10 (Maycol Escobar Decl.); compare RFJN, Exh. 13, p. 4 ("Maycol Antonio Escobar Fuentes . . . started at Millennium on 9/1/2009" and his "last day was 9/11/2011")) Exh. 11 (Mayra Blanco Decl.), Exh. 13 (Kelyn Vargas Decl.) Exh. 14 (Blanca Cueva Decl.) Exh. 15 (Geovanny Cortez Decl.), see also 3/15/17 Order, pp. 22-23 (sustaining evidentiary objections to the "Cueva Declaration "Vargas Declaration," "Blanco Declaration," and “Cortez Declaration” submitted in support of the original Motion for Class Certification).

[8] The Court expresses no view as to whether civil cases 19STCV42505 and 19STCV43740 are related to civil case BC521172 within the meaning of CRC 3.300(a).

[9] When “the subject of judicial notice is ‘of substantial consequence to the determination of the action,’ Evidence Code section 455 requires the court to allow each party to present information relevant to the propriety of taking judicial notice and as to the tenor of the matter to be noticed.” (People v. Banda (2018) 26 Cal.App.4th 349, 360.) The Court does not find the existence of the class actions identified above “of substantial consequence to the determination of th[is] action” because the Court is denying the Renewed Motion for several other reasons, and therefore does not believe input is required. However, the Court will consider oral objections to judicial notice (if any) at the hearing.