Judge David S. Cunningham, Case Number: 19STCV28168, Date: 2025-04-29 Tentative Ruling

Judge: David S. Cunningham, Case: 19STCV28168, Date: 2025-04-29 Tentative Ruling

Moving Party: Kahmyle Bloom and Martha Mendez Miranda (collectively “Plaintiffs”)

Plaintiffs assert that Culmin, GotWorx Staffing, Inc. (“GotWorx”), and Slate Professional Resources, Inc. (“Slate”) (collectively “Defendants”) jointly employed them and subjected them and other past and present employees to multiple wage-and-hour violations.

The plaintiff bears the burden of demonstrating that class certification is proper. (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460; see also Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 654.) He or she “must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.)

The Court finds that Plaintiff’s motion should be denied without prejudice because:

* the status – and participation – of Employers HR LLC (“Employers HR”) is unclear;[1]

A class is “ascertainable when it is defined ‘in terms of objective characteristics and common transactional facts’ that make ‘the ultimate identification of class members possible when that identification becomes necessary.’” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980.)

“The class must be ‘numerous’ in size. But there is no fixed minimum or maximum number . . . The numerosity analysis is limited to how many individuals fall within the class definition and whether their joinder is impracticable, not how many ‘net’ class members there might be after considering affirmative defenses.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 14:21, emphasis in original.)

“A party seeking class certification bears the burden of satisfying the requirements of Code of Civil Procedure section 382, including numerosity, and the trial court is entitled to consider ‘the totality of the evidence in making [the] determination’ of whether a ‘plaintiff has presented substantial evidence of the class action requisites.’” (Soderstedt v. CBIZ S. California, LLC (2011) 197 Cal.App.4th 133, 154.)

* “Class: All hourly paid, non-exempt employees of Defendants placed to work for [] Culmin and GotWorx client’s locations whose time worked was recorded electronically in California at any time from August 13, 2015 through the date of the order granting certification” (Notice of Motion, p. 2);

* “Waiting Time Sub-Class: All formerly employed, hourly, non-exempt employees of Defendants whose employment ended at any time between August 13, 2015 and the date of the order granting certification” (ibid., underlining deleted); and

* “Itemized Wage Sub-Class: All current and former employees of hourly, non-exempt employees of Defendants who received pay stubs with the incorrect legal employer.” (Ibid., underlining deleted.)

The class definition is overbroad and ambiguous. It fails to mention the rounding practice and seems to include employees who did not experience the practice and suffer harm from it.

The waiting-time definition is also overbroad and ambiguous. The words “waiting-time violation” do not appear, and the definition applies to all employees who stopped working for Culmin by a certain date instead of just employees who incurred a waiting-time violation.

The Court finds the wage-statement definition ambiguous because it fails to state a class period, and it requires a legal ruling to be made for membership to be determined. A potential member reading the words “incorrect legal employer” would not be able to “identify himself or herself as having a right to recover based on the [subclass] description.” (Noel, supra, 7 Cal.5^th at 979.)

Plaintiffs fail to show numerosity. No evidence is cited, and no estimate is provided. (See Motion, p. 7.)

“[T]he proponent of certification must show, inter alia, that questions of law or fact common to the class predominate over the questions affecting the individual members[.]” (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4^th 906, 913.) This means “each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment[.]” (Edmon & Karnow, supra, at ¶ 14:11.6.) “[T]he issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.” (Ibid.)

Plaintiffs’ main theory of liability is that “Defendants implemented a common practice of rounding employees’ time worked to the nearest quarter hour[,]” which “resulted in a failure to pay minimum wage and overtime wages, failure to provide accurate, itemized wage statements, failure to pay all wages upon separation of employment and unfair/unlawful business practices.” (Motion, pp. 1, 2.)

To demonstrate the purported practice, Plaintiffs cite exhibits A, B, D, E, and G to the declaration of attorney Katherine Odenbreit and paragraphs 26 through 29 and 40 through 49 in the declaration of expert Aaron Woolfson. (See Motion, pp. 8-9; see also Reply, pp. 7-9.)

Exhibit A is the deposition of Culmin’s person most knowledgeable (“PMK”). Plaintiffs cite pages 23, 53, and 54, claiming “[t]he policies and methods for processing payroll were the same when [] Culmin began operating as GotWorx.” (Motion, p. 9.)

The Court disagrees. On page 23, the PMK lists some of the Culmin clients that she could remember and says they are now “clients of GotWorx[.]” (Odenbreit Decl., Ex. A, p. 23.) On pages 53 and 54, the PMK states that (1) no Culmin applicant “ever worked in Freehold, New Jersey[,]” (2) “from 2017 to the present or when Culmin stopped operating, [] the address on the wage statements and the name” has been “Employers HR[,]” (3) “payroll” and “[t]he average worked” are “submitted from the clients through various methods, either email or maybe, back in the day, even fax, and – or downloaded from a clock[,]” (4) Culmin employees entered the data received from clients into “the COATS program[,]” (5) “GotWorx utilize[s] COATS as well for payroll[,]” and (6) GotWorx does not possess Culmin’s database. (Id. at Ex. A, pp. 53-54.) At most, these statements show that Employers HR’s name and address appear on wage statements. They do not show commonality as to the alleged rounding practice.

Exhibit B is deposition testimony from another Culmin PMK. Plaintiffs cite pages 25, 38, 39, 52, and 62. (See Motion, pp. 8-9.)

Overall, the Court finds exhibit B unhelpful. The cited pages and the uncited pages suggest that clients determined “how [] applicants [were] instructed to record their time worked[.]” (Odenbreit Decl., Ex. B, p. 32.) The instructions varied because “[s]ome clients had their own time sheets, time systems,” while “others would use [Culmin’s] time sheets given by [Culmin] to the employees and to the clients.” (Ibid.) Approximately eight to 10 of Culmin’s clients had electronic systems for timekeeping. (see ibid.) A few of them used electronic timeclocks provided by Culmin that used uAttend software. (See id. at Ex. B, pp. 36-37.) Those clocks were “set up with default settings[,]” namely, they “defaulted” to the “time-rounding policy.” (Id. at Ex. B, pp. 38-39.) But some clients did not want the rounding default, so the default was changed/removed for them. (See id. at Ex. B, pp. 39-40.) Clients who utilized uAttend and who did not change/remove the default constitute a small subset of Culmin’s total clients. (See, e.g., id. at Ex. A, p. 22 [PMK recalling that Culmin probably had 50 clients].)

Exhibit D is Employers HR’s policy manual, and exhibit G is Ciera Staffing, LLC’s (“Ciera”) policy manual. Employers HR and Ciera performed human resources for Culmin. (See id. at Ex. A, p. 33.) The manuals state:

Accurately recording time worked is the responsibility of every nonexempt employee. Federal and state laws require the Company to keep an accurate record of time worked in order to calculate employee pay and benefits. Time worked is all the time actually spent on the job performing assigned duties.

Nonexempt employees should use either a time sheet, time card or use of a time clock to accurately record the time they begin and end their work, as well as the beginning and ending time of each meal period. They should also record the beginning and ending time of any split shift or departure from work for personal reasons. Overtime work must always be approved before it is performed.

Altering, falsifying, tampering with time records, or recording time on another employee's time record may result in disciplinary action, up to and including termination of employment.

(Id. at Ex. D, p. CULMIN000100; see also id. at Ex. G, p. CULMIN000018 [same].) The statement does not mention the rounding practice. It does not prove commonality.

Exhibit E includes three sample timecards. Plaintiffs claim the timecards show rounding. (See Motion, p. 9.)

The Court disagrees. The handwritten notations are unauthenticated, and, regardless, the samples only pertain to Miranda. (See Odenbriet Decl., Ex E.)

Woolfson reviewed “PDF images of payroll and timeclock sheets consisting of approximately 15,359 shifts’ work of timekeeping entries that indicated work conducted by 382 employees that appeared on 3,662 paychecks.” (Woolfson Decl., ¶ 26.) “The paychecks covered work that was performed between” May 24, 2015 and June 5, 2020. (Ibid.)

43. . . . it appears that segments of the shifts were rounded to the nearest fifteen minute interval. As an example, if an employee clocked out at 6:58am, the employees’ compensable time was tagged as beginning at 7:00am. When employees clocked out for their meal at 11:59am, and clocked back in at 12:28pm the lunch would be indicated as thirty (30) minutes.

44. Defendants’ timeclock records appear to be rounded in a manner that applies segments to the nearest fifteen minutes, so that employees who worked a quantity of hours in a day that started up to seven (7) minutes before the nearest quarter hour, or fifteen (15) minute increment of time (e.g. :00, :15, :30, :45) were rounded up to the nearest quarter hour. Conversely, employees who were working up to seven (7) minutes after the nearest quarter hour, (or fifteen (15) minute increment of time (e.g. :00, :15, :30, :45) were rounded down.

45. This resulted in the employee losing a daily quantity of minutes, or gaining a daily quantity of minutes. While occasionally the number of minutes indicated on the timeclock were rounded in a manner that was equivalent to the employees’ pay for those particular shifts’ segments on a per-day basis, employees would typically experience a net loss of minutes over the paycheck period as a sum of the daily rounding of time because most of those shifts with rounding disproportionately affected overtime in a manner that would reduce down or eliminate overtime in a day.

46. For instance, there were 15,359 shifts represented within timeclock. Of the 15,359 shifts, there appear to have been 8,721 shifts where the quantity of hours paid for that shift was less than the actual time worked, while there were 5,013 shifts where the quantity of hours paid for that shift was more than the actual time worked. The remaining 1,625 of the shifts were paid the same number of hours as indicated on the timeclock.

47. The shifts that were underpaid, however, were paid an average of 4.53 minutes per shift less than worked, while the shifts that were overpaid were paid an average of 4.36 minutes per shift more than the quantity of hours worked.

48. At first blush this may seem fairly equivalent in nature. However, upon further analysis, of the 8,721 shifts that were paid less than the quantity of hours worked by the employee on that shift, 4,412 of the shifts (50.59%) were rounded in a manner where the original time before rounding indicated overtime, but after the rounding employee resulted in a complete evisceration of the overtime. And 2,490 of 8,721 shifts experienced some (but not all) reduction in overtime.

49. After summing each of the constituent shifts’ rounding on a per-check basis, I was able to determine that out of the 3,659 paychecks received by 382 employees, that 2,373 paychecks resulted in a net underpayment to 286 employees.

The Court sees two problems. One, Plaintiffs fail to prove that the data sample is representative and reliable. (See id. at ¶ 1 n.1 [Woolfson noting that he “was [] not responsible for the selection of the data, nor the date range of the data that was provided”]; see also id. at ¶ 29 n.8 [Woolfson conceding that he “was asked to analyze all data that Defendant had provided” and that “Defendant was responsible for the production of the timekeeping and payroll records”].) Two, even assuming the sample is representative and reliable, the findings reveal that numerous employees either were not injured or acquired a windfall. Indeed, for more than 43% of the shifts (6,638 of 15,359), “the quantity of hours paid” was the same or “more than the actual time worked.” (Id. at ¶ 46, emphasis in original.) Over 1,200 paychecks (out of 3,659 paychecks) in the sample do not show an underpayment from rounding. (See id. at ¶ 49.) The existence of such a substantial minority tends to show that harm is an individualized issue rather than a common one.[2]

The same analysis applies to the waiting-time subclass. It is derivative, and Plaintiffs rely on the same evidence. (See Motion, pp. 12-13.)

The wage-statement subclass is a closer call. Culmin’s PMK testified that Employers HR’s name and address have appeared on wage statements “from 2017 to the present or when Culmin stopped operating[.]” (Odenbreit Decl., Ex. A, p. 53.) This is common evidence of potential violations, but does it cover the entire class period? The Court reiterates that the wage-statement definition is ambiguous on this point.

“The ‘test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” (Edmon & Karnow, supra, at ¶ 14:29 [quoting Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4^th 362, 375].)

“That the purported class representative's claims must be ‘typical’ does not mean they must be identical to the claims of other class members. It is sufficient that the representative is similarly situated so that he or she will have the motive to litigate on behalf of all class members.” (Id. at ¶ 14:29.2.) “Thus, it is not necessary that the class representative have personally incurred all of the damages suffered by each of the other class members.” (Ibid., emphasis in original.)

“The class representative, through qualified counsel, must be capable of ‘vigorously and tenaciously’ protecting the interests of the class members.” (Id. at ¶ 14:36.)

“The prospective class representative must file a declaration stating that he or she desires to represent the class and understands the fiduciary obligations of serving as class representative. Counsel’s declaration to that effect will not suffice.” (Ibid.)

Bloom is inadequate. She missed two noticed depositions, and she seems unable to continue as a representative. (See Reply Odenbreit Decl., ¶¶ 4-6 [noting that Plaintiffs’ counsel is attempting to find a new putative representative to replace Bloom].)[3]

As for Miranda, Culmin asserts that she was only placed to work with STG Logistics, Inc. (“STG”) and that she is not representative of putative members who worked for other clients. (See Opposition, pp. 15-16.)

Moreover, Culmin contends a recent class settlement in another case encompasses the STG-related claims in this case. Culmin opines that the settlement resolves Miranda’s claims here. (See id. at p. 15.)

Culmin also contends Miranda testified that she does not know her duties as a class representative and does not care if she is appointed. (See id. at pp. 20-21.)

The first argument is persuasive. Filing a class action against a staffing agency but not the agency’s clients can be problematic. Often, the clients set the working conditions and handle the collection of timing data. The working conditions and collection methods often end up being different, so a staffing employee sent to one client usually has no knowledge of the other clients and is inadequate to represent the employees who were placed with them. Plaintiffs fail to show that Miranda is typical and adequate with respect to putative members who worked for clients other than STG.

The second argument is premature. The settlement involving STG-related claims is not set for final approval until August 2025. The number opting out, if any, and the overall impact on this case cannot be determined at this time.

The third argument is unavailing. Miranda clarified during her deposition that she understands the role of a class representative and is willing to do the job:

Q. Miss Miranda, do you understand that, in this litigation, you're putting yourself forward to represent other employees in a similar position to 13· ·yourself?

Q. And are you willing to work with your attorneys to do so efficiently and effectively?

Q. And are you willing and have you prioritized the interests of the other employees in the group equal to your own interests?

Culmin argues that Plaintiffs and Plaintiffs’ counsel failed to allege all potential causes of action and sue all potential defendants. (See Opposition, pp. 16-18.)

This issue does not need to be decided right now. The instant motion is denied without prejudice. In deciding whether to file a new certification motion, Plaintiffs are free to take this argument into account and to respond to it at that time.[4]

“The proponent of class certification must demonstrate that the proposed class action is manageable [citation].” (Edmon & Karnow, supra, at ¶ 14:11.10.) “This requires the trial court ‘to carefully weigh the respective benefits and burdens of a class action, and to permit its maintenance only where substantial benefits will be accrued by both litigants and the courts alike.’ [Citation.]” (Ibid., emphasis in original.)

“In certifying a class action, the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.” (Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal. 4th 1, 28-29.) “Trial courts must pay careful attention to manageability when deciding whether to certify a class action. In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class.” (Id. at 29.)

“A class action is not ‘superior’ where there are numerous and substantial questions affecting each class member's right to recover, following determination of liability to the class as a whole.” (Edmon & Karnow, supra, at ¶ 14:46, emphasis in original.)

The class method is unmanageable and inferior since Plaintiffs fail to satisfy the other certification prongs.

[1] Employers HR is a named Defendant. (See Consolidated Class Action Complaint, ¶ 1.) Plaintiffs claim Culmin, GotWorx, Slate, and Employers HR were joint employers. (See Motion, p. 12; see also Reply, p. 9.) However, the motion is merely brought against Culmin, GotWorx, and Slate (see Motion, p. 1), and Employers HR did not submit an opposition brief.

[2] Plaintiffs contend the joint-employer issue is a common question. (See Motion, pp. 11-12.) Since GotWorx, Slate, and Employers HR are not participating in this hearing, the Court declines to address this argument.

[3] Culmin claims Bloom is inadequate because she stole cosmetics from a former employer. (See Opposition, p. 20.) Given the preceding analysis, the Court does not need to reach this argument.

[4] The Court notes that it routinely sees certification motions that only seek to certify one liability theory or one kind of wage-and-hour claim. Which makes sense. Each employer is unique. They do not all commit wage-and-hour violations, per se, and they do not all commit the same violations when they do commit them.