Judge David S. Cunningham, Case Number: 21STCV44517, Date: 2024-07-11 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV44517, Date: 2024-07-11 Tentative Ruling

Opposing Party: Investco Wings, Inc. (“Defendant” or “Investco Wings”)

During oral arguments, the Court intends to discuss the prospect of certifying facial-challenge issue classes as to the meal-break and rest-break claims.

Investco Wings owns and operates a restaurant. Plaintiff used to work there. She alleges that Defendant subjected her and other current and former employees to numerous 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.) To do so, [t]he party advocating class treatment 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.)

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.)

Plaintiff seeks to certify four class claims – failure to provide meal periods, failure to provide rest periods, failure to pay for off-the-clock work, and failure to reimburse uniform expenses. The class claims are different and have different facts and elements.

The proposed class definition is “all non-exempt employees who worked for Investco Wings in the South Pasadena Wingstop between December 30, 2015 and the date of class certification.” (Motion, p. 1.)

* the fact that Defendant has already identified the putative members demonstrates that the putative class is “easily ascertainable” (ibid.); and

The Court finds the current definition overbroad in that it applies to all employees, regardless of whether they experienced some (or all) of the alleged violations. Plaintiff is granted leave to propose subclass definitions.

The Court agrees with Plaintiff as to the numerosity requirement; 52 putative members is more than enough. (See Edmon & Karnow, supra, at ¶ 14:21.1 [instructing that “[n]o minimum number of plaintiffs is required as a matter of law for maintenance of a state court class action”]; see also id. at ¶ 14:21.3 [finding a class of 10 permissible]; Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4^th 1213, 1222-1223 [reversing denial of a nine-member class].)

“[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.)

An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

“Employers need not ‘ensure’ that no work is performed during a meal period. So long as the employer relieves the employee of all duties, the employer is not liable for a meal period premium if the employee chooses to work (unless the employer deters or discourages the employee from taking the meal period).” (Chin, et. al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2022) ¶ 11:829.18, emphasis in original.)

“Plaintiff’s theory of recovery alleges that meal periods were routinely and consistently interrupted – by the requirement that employees work during meal breaks – such that employees were entitled to meal period penalty pay.” (Motion, p. 9, emphasis in original; see also Reply, pp. 6-7.) Plaintiff claims “Defendants’ meal period policies were uniform, and communicated via the same employee handbooks throughout the class period, did not provide for penalty pay for interrupted meal periods.” (Motion, p. 9-10, emphasis in original.) “Moreover,” she claims “the policies permitted managers to schedule meal breaks based on business needs.” (Id. at p. 10.) She contends “[t]here [] is a predominating common issue of whether a meal or rest break is legally compliant if class members are required to have on duty meal breaks that are interrupted.” (Ibid.; see also Reply, pp. 5-7.)

Defendant disagrees. Defendant says “[i]t is well-established that if an employee voluntarily continues working during an off-duty meal period, the employer will not be liable for premium pay; at most, it will be liable for straight pay, and then only when it knew or reasonably should have known that the worker was working through the authorized meal period.” (Opposition, p. 7.) Defendant claims Plaintiff’s evidence, at most, shows that Plaintiff may have suffered violations but does not show common harm to the putative class. (See id. at pp. 8-10.)

In reply, Plaintiff cites Donohue v. AMN Services, LLC (2021) 11 Cal.5^th 58 for the proposition that “records showing non-compliant meal periods give rise to a rebuttable presumption that the employer did not provide a compliant meal period.” (Reply, p. 5.)

The Court turns to the evidence. Plaintiff’s counsel’s declaration attaches four pieces of evidence – Defendant’s responses to special interrogatories, which primarily concern ascertainability, Defendant’s break policy, Defendant’s appearance policy, and Plaintiff’s declaration. (See Segal Decl., Exs. 1-4.) For meal breaks, Plaintiff’s moving brief only cites the break policy and Plaintiff’s declaration. (See Motion, pp. 6-7, 9-11.) The break policy states:

In accordance with state and local laws, non-exempt employees will be provided with meal and break periods. Break periods of less than 20 minutes will be paid. Break periods lasting longer than 20 minutes will be unpaid.

Non-exempt employees must be fully relieved of their job responsibilities and are not permitted to work during unpaid break and meal periods of more than 20 minutes. If for any reason a non-exempt employee does not take the applicable meal and rest period that they are provided, the employee must notify his or her supervisor immediately.

INVESTCO WINGS INC will schedule meal and break periods in order to accommodate Company operating requirements.

Supervisors will schedule meal and break periods in order to accommodate INVESTCO WINGS INC operating requirements. Employees must take their meal and break periods, but if for any reason a non-exempt employee does not take the applicable meal or break period, the employee must notify his or her supervisor immediately.

(Segal Decl., Ex. 2, p. 17, § 4.6, p. 18, § 4.7.) Plaintiff’s declaration states:

8. Defendants did not schedule meal or rest breaks for myself or other employees at my location.

9. While working at Wingstop, I commonly did not receive 30-minute uninterrupted meal breaks. Further, approximately once or twice a week I was not provided with a meal break until after the 5^th hour of work. This would happen often because the restaurant was busy and we were short staffed. I often was required by Defendants to work through my meal break to care for customers. I estimate that I worked through my meal breaks at least 30 times during my employment at Wingstop. I saw my coworkers working through their meal breaks as well.

10. My manger Joel sometimes instructed me and my coworkers to clock out for a meal break and continue working. Due to the heavy customer flow and being understaffed, Defendants expected me and my co-workers to clock out and continue working during meal breaks.

11. My meal breaks and rest breaks were sometimes interrupted by my supervisor telling me to come back to work to assist them due to the heavy workload. My meal and rest breaks were often interrupted by supervisors, general mangers, cashiers, cooks and customers. My meal breaks were interrupted approximately 3 times a week. My rest breaks were interrupted approximately 3 times a week. I saw that my co-workers meal and rest breaks were also often interrupted.

12. I often was not able to take a meal or rest break due to being short staffed. Sometimes the only employees in the restaurant were me, my manager Joel and the cook.

13. I complained to my Manager Joel multiple times that I was not able to take meal or rest breaks due to the restaurant being busy and short staffed.

14. During my employment with Wingstop, I was not provided with another, thirty (30) minute uninterrupted meal break at any time.

15. On the occasions that I worked a shift of 8 hours or more, I sometimes was not provided with a second meal break.

The Court agrees with Defendant. Plaintiff’s evidence indicates that Plaintiff worked through meal breaks and had interrupted meal breaks on multiple occasions and that she sometimes saw similar things happen to other employees. What is missing, however, is common proof of common harm. As applied to the other employees (and the putative class), Plaintiff does not have personal knowledge. The other employees are unidentified; the dates of the incidents Plaintiff witnessed are unidentified; there are no time records, declarations, or deposition testimonies from the other employees showing that Defendant did not pay them for the missed and interrupted meal breaks; and, although the break policy states that “[s]upervisors will schedule meal and break periods in order to accommodate INVESTCO WINGS INC operating requirements” (Id. at Ex. 2, p. 18, § 4.7), the policy language, alone, is inadequate to prove each element. Bottom line, Plaintiff’s evidence lacks foundation, is speculative, and does not constitute common evidence.

The Court finds that the hearing should be continued. The Court is inclined to give Plaintiff a chance to file supplemental evidence.

As a matter of guidance, the Donohue presumption is inapplicable. Plaintiff’s evidence does not include time records, let alone noncompliant ones.

Last point. Plaintiff appears to make a facial challenge to the meal-break policy. (See Motion, pp. 9-10.) While it is within the Court’s discretion to certify a facial-challenge issue class, Plaintiff does not request it in her briefs. The Court intends to discuss this option at the hearing and will either reject the option at that time or order supplemental briefing.

Where mandated by “a state law” (including statutes, regulations, standards and orders of the IWC, the Occupational Safety and Health Standards Board and the Division of Occupational Safety and Health), employers must provide rest and recovery periods that “shall be counted as hours worked” and “for which there shall be no deduction from wages.” [Citation.]

In general, employers must provide paid rest periods of a specified minimum duration (generally 10 minutes of rest for every 4 hours worked). For shifts of less than 4 hours, employees are entitled to a 10-minute rest period after 3 1/2 hours. [Citations.]

Rest periods are to be permitted in the middle of the shift “insofar as practicable” [citations]. According to one California opinion, “departure from the preferred schedule is permissible only when the departure (1) will not unduly affect employee welfare and (2) is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule.” [Citation.]

“An employer who fails to provide compliant rest periods must pay the employee one additional hour of pay at the employee’s “regular rate” for each day that a rest period was not provided.” (Id. at ¶ 11:829.9.)

Defendant’s rest break policy is deficient because it does not provide for premium pay, and because it allows managers to schedule breaks based on business needs. [Citation.]

Plaintiffs also pursue a theory of recovery that rest period penalty pay is owed to class members for having their rest breaks interrupted by the off-the-clock work. As shown above common issues of both fact and law predominate regarding whether or not the off the clock work to assist clients qualified as “hours worked” and were, therefore, compensable.

The question of whether these activities interrupted rest breaks implicates many of the same common questions of law and fact since an employee must be relieved of all duties and employer control during a rest break. [Citation.] When an employee is required to submit to an employer’s control or work during a rest period the “employee essentially performs ... ‘free’ work, i.e., the employee receives the same amount of compensation for working through the rest periods that the employee would have received had he or she been permitted to take [off-duty] rest periods” [Citation.]

An employer must “authorize and permit” such breaks, “subject to a duty to make a good faith effort” to schedule such breaks “in the middle of each work period,” but may deviate “where practical considerations render it infeasible.” [Citation.]

Setting aside Plaintiff’s self-serving declaration, her actual testimony noted that employees worked out with each other when to take breaks and that when Plaintiff was in charge, she did not interfere with employee-selected break times and always tried to ensure employees received breaks.

(Opposition, p. 7; see also id. at p. 8 [contending Plaintiff fails to “provide common proof”].)

The Court agrees with Defendant. Plaintiff cites the same documents that she cites in support of the meal-breaks claim. (See Motion, pp. 6-7, 11-12.) Again, the break policy and Plaintiff’s declaration do not suffice as common proof. They do not identify the other employees or the dates of the incidents Plaintiff saw, nor do they establish that Defendant failed to pay the other employees for missed and interrupted rest breaks. (See, e.g., Segal Decl., Ex. 4, ¶¶ 16-18.).[1]

Plaintiff’s cases do not change the outcome. The absence of common evidence renders them distinguishable. (See Motion, pp. 11-12 [citing, for example, Safeway v. Superior Court (2015) 238 Cal.App.4^th 1138, Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4^th 388, Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4^th 1193, and Jimenez v. Allstate Ins. Co. (9^th Cir. 2014) 765 F.3d 1161].)

The hearing is continued, and Plaintiff is granted leave to submit supplemental evidence.

The option of certifying a facial-challenge issue class will be addressed at the July 11^th hearing.

“An employer must compensate nonexempt employees for ‘off-the-clock’ work (before punching in or after punching out on a time clock) if the employer knows or should have known the employees were working those hours.” (Chin, supra, at ¶ 11:827.5, emphasis in original.)

Defendants’ policies and practices give rise to predominate common questions of fact and law. Employees were required by managers to perform off-the-clock work during meal and rest breaks and prior to and after their shifts.

Plaintiff’s theory of recovery gives rise to predominate common questions of law, the most important being whether or not employees should have been compensated for the time spent working before and after their scheduled shifts, such as time spent waiting for another employee to arrive and for time spent training. . . .

Defendant asserts that “Plaintiff fails to show” a common “policy of requiring off-the-clock work[.]” (Opposition, p. 10.) In fact, Defendant contends its policies “expressly prohibit” such work. (Ibid., emphasis in original; see also id. at pp. 10-11.)

The Court agrees with Defendant. Plaintiff cites paragraph 22 of her declaration (see Motion, pp. 6-7, 13-14), which merely discusses Plaintiff’s paychecks:

22. My paychecks were often inaccurate. My paychecks would not reflect all the meal or rest period premiums I was owed when I could not take meal or rest breaks. Nor did any paycheck include a reimbursement for the uniform I purchased for work at Wingstop. Defendants often did not pay me for all hours worked. Sometimes my paystubs would reflect that I works 2-7 hours less than I actually worked. Sometimes Defendants seemed to have omitted overtime hours from my paystub, or paid overtime hours at the regular hourly rate rather than paying me time and a half for overtime hours worked. I confronted my managers including Joel about the pay problems. Joel said he would look into it, but the issues were not corrected. I also complained to my supervisor Carlos about the pay discrepancy, but nothing was done by him to correct the issues.

23. I heard my co-workers complaining to our supervisor Carlos that they were not paid for all hours worked. My co-workers complained with each other that they were not paid for all hours worked and that Carlos did not resolve their complaints about not being paid for all hours worked.

(Id. at Ex. 4, ¶ 23.) The statement amounts to hearsay, is speculative, and fails to show a common policy, common misconduct, and common harm.

Plaintiff cites Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4^th 949, claiming “Defendants cannot argue that the lack of records somehow weighs against certification, liability, or damages.” (Motion, p. 14; see also Reply, p. 10.)

True, “[e]mployees are not penalized because of their employer’s failure to keep adequate records.” (Chin, supra, at ¶ 11:439.) “They can meet their burden of proof in wage actions by their own testimony showing that they have in fact performed work for which they have not been properly compensated.” (Ibid.) “They need not prove the precise hours worked; they need only produce sufficient evidence to show the amount and extent of such work as a mater of a just and reasonable inference.” (Ibid., emphasis in original.)

“The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or that negates the reasonableness of the inference the employee's evidence supports.” (Id. at ¶ 11:440.) “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result is only approximate.” (Ibid.)

In Cicairos, truck drivers alleged meal-break, rest-break, and wage-statement violations against their employer. The Court of Appeal denied the employer’s motion for summary judgment because the computer systems installed on the trucks had not scheduled or recorded meal breaks. (See Cicairos, supra, 133 Cal.App.4^th at 962-963.) The justices determined that the lack of data in the computer systems should be held against the employer. As a result, they found that the employer failed to meet its burden to show that meal breaks had been provided. (Id. at 963.)

The situation here is different. Plaintiff bears the burden at the certification stage. Her evidence is objectionable, fails to show a common policy, common misconduct, and common harm, and does not support an inference in her favor.

The Court continues the hearing and grants Plaintiff permission to file supplemental evidence.

“[A]n employer must indemnify its employees ‘for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . .” (Chin, supra, at ¶3:2, emphasis in original.)

This rule applies to uniforms. “If the employer requires its employees to wear uniforms at work, the employer must furnish the uniform and pay for its upkeep.” (Id. at ¶ 5:1402, emphasis in original; see also id. at ¶ 11:462 [same].)

Plaintiff contends Defendant required the putative class to wear Wingstop shirts. She claims Defendant provided one to two shirts per employee but did not maintain them. She says she and “her coworkers were faced with the choice of either washing their uniforms themselves every night or purchasing extra uniforms at their own expense.” (Motion, pp. 1; see also Reply, pp. 11-12.)

Plaintiff admits that she never had to purchase the Wingstop uniform in her deposition. Defendant has a policy where an employee may be reimbursed for preapproved expenses, provided they submit expense reports, and Plaintiff admits that she never did so. Plaintiff cannot claim she was not reimbursed for a business expense when she never asked for a reimbursement or establish a common policy. Additionally, even if Plaintiff was required to purchase such items, black pants and shoes are the type of “basic wardrobe item” that is generally usable in the occupation without reimbursement. Lastly, even if Plaintiff had to launder her uniform, she presents no evidence whatsoever that this required “special laundering,” or “more than ‘minimal care’ by modern standards.” [Citation.]

Plaintiff therefore presents no common proof that employees are not reimbursed for uniforms, and no uniform policy that employees are required to purchase uniforms in the first place.

The Court agrees with Defendant. Plaintiff relies on Defendant’s appearance policy and her declaration, paragraph 21. (See Motion, pp. 1, 7, 14.) The appearance policy states that “[o]nly company approved uniforms” “are considered appropriate workplace attire[,]” except when “management designates ‘casual days[.]’” (Segal Decl., Ex. 3, p. 32, § 6.4.) It does not address the number of shirts, maintenance, replacement, who pays, etc. Paragraph 21 provides:

21. Plaintiff and the putative class members were required to maintain uniforms that Defendants required they wear on the job on their own time and at their own expense. Defendants only provided me and my coworkers with 1 or 2 Wingstop shirts. Defendants would admonish me and my coworkers for having dirty uniforms despite only providing one or two Wingstop t-shirts to us. Me and my coworkers repeatedly requested additional shirts, but they were not provided. This meant that me and my coworkers had to wash our Wingstop uniform ourselves every night or every other night, or purchase extra uniforms at our expense.

(Id. at Ex. 4, ¶ 21.) It contains hearsay and is speculative as to the putative class. Neither document demonstrates common harm or a predominating common question.

“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’s claim is atypical “if it is subject to ‘factually intensive or legally complex unique defenses that pose any significant risk of diverting [plaintiff’s] attention from class issues.’” (Id. at ¶ 14:35.10 [citing Fireside Bank v. Superior Court (2007) 40 Cal.4^th 1069] emphasis in original.)

Defendant claims Plaintiff is atypical because she worked as a shift leader, and she fails to “show that compliant, off-duty meal periods were not made available to her[.]” (Opposition, p. 14.)

The Court disagrees. Plaintiff’s claims and the putative class members’ claims derive from “the same events, practices, or courses of conduct” and are “based on the same legal theories.” (Motion, p. 15.) Her declaration and her deposition testimony demonstrate multiple potential violations during her employment period. (See, e.g., Segal Decl., Ex. 4, ¶ 22 [declaring that Defendant did not pay Plaintiff for all of the missed and interrupted breaks]; see also, e.g., Grant Decl., Ex. A, pp. 27-28, 44-45, 75-78, 93-94.) She is typical.[2]

Defendant’s “shift leader” argument is unavailing. Plaintiff was a shift leader for two of the four years that Defendant employed her. (See Reply, p. 3.) When she was a cashier, she and the putative class members were similarly situated.

“The class representative, through qualified counsel, must be capable of ‘vigorously and tenaciously’ protecting the interests of the class members.” (Edmon & Karnow, supra, 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.)

Defendant asserts that Plaintiff does not understand her fiduciary duties. (See Opposition, p. 15.)

The Court disagrees. Plaintiff’s declaration and Plaintiff’s counsel’s declaration contain the necessary information. (See Segal Decl., ¶¶ 3-7; see also id. at Ex. 4, ¶¶ 24-26.)

Defendant’s citation to Plaintiff’s deposition transcript, pages 90-94, is unpersuasive. On those pages, Plaintiff says she did not keep a log or documentation of her missed and interrupted breaks. (See Kohler Decl., Ex. 1, pp. 90-94 [further stating that her fiduciary responsibility is to “do [her] best” to “say[] everything that happened”].) The statements do not establish that she fails to understand her obligations as a class representative.

“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.)

Plaintiff contends this prong is satisfied because common questions predominate, and she claims she does not need to file a trial plan. (See Motion, p. 17; see also Reply, pp. 12-14; cf. Opposition, pp. 12-13 [stating that “Plaintiff presents absolutely no trial plan, and fails to otherwise address how the individualized issues and defenses may be tried in a manageable way”].)

In light of the commonality analysis, the Court disagrees. Trial plan or not, the class method is inferior on the current record because Plaintiff fails to demonstrate predominating common issues.

There is a possible exception. If the Court ends up certifying facial-challenge issue classes for the meal-break and rest-break claims, the class method will be manageable and superior for that purpose.

[1] To repeat, the record lacks time records and declarations from the other employees.

[2] Defendant does not argue that Plaintiff is atypical as to the uniform-reimbursement claim. (See Opposition, p. 15.)