Judge David S. Cunningham, Case Number: 22STCV21554, Date: 2024-12-06 Tentative Ruling

Judge: David S. Cunningham, Case: 22STCV21554, Date: 2024-12-06 Tentative Ruling

Objecting Party: E.B. Bradley Co. and West Coast Laminating, LLC (collectively “Defendants”)

Opposing Party: E.B. Bradley Co. (“EB Bradley”) and West Coast Laminating, LLC (“West Coast Laminating”) (collectively “Defendants”)

If Plaintiff’s counsel survive the order to show cause, the Court intends to grant Plaintiff leave to name new class representatives.

If Plaintiff’s counsel do not survive the order to show cause, the Court intends to deny Plaintiff’s motion with prejudice.

Plaintiff used to be a truck driver for EB Bradley. He claims EB Bradley and West Coast Laminating jointly employed him, and he alleges that they subjected him and other current and former employees to multiple wage-and-hour violations. (See Second Amended Complaint (“SAC”), ¶¶ 14, 26-114.)

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 (“Brinkder”).)

Plaintiff fails to prove the adequacy prong. “The class representative, through qualified counsel, must be capable of ‘vigorously and tenaciously’ protecting the interests of the class members.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 14:36.) “The prospective [] representative must file a declaration stating that he or she desires to represent the class and understands the fiduciary obligations of serving[.]” (Ibid.) Plaintiff’s declaration contains the requisite information (see McGhee Decl., ¶¶ 15-24), but his deposition testimony tells a different story. He did not know that his case alleges class claims on behalf of all EB Bradley employees; he did not know what a class representative is; he did not know that he is the named representative; and it was not his intent to bring a class action:

Q. Are you aware, Mr. McGhee, that this lawsuit is a class action filed on behalf of all employees?

Q. Do you have any understanding, Mr. McGhee, that you in this lawsuit are seeking to represent all employees, all hourly employees at EB Bradley?

Q. Okay. Do you have any interest in pursuing a lawsuit on behalf of all hourly employees at EB Bradley?

(Schwob Decl., Ex. 1, pp. 48, 70 [attaching Plaintiff’s deposition transcript].) Moreover, his understanding was that this is a wrongful-termination case (there are no wrongful-termination claims asserted in the SAC) (see SAC, ¶¶ 26-114); he was unaware of any other claims being alleged; and he did not know what is being sought for recovery:

Q. Sure. You understand that a lawsuit has been filed on your behalf against EB Bradley and West Coast Laminating?

Q. Is it your understanding that you're pursuing a claim for wrongful termination in this case?

Q. Do you have an understanding of anything else that you're claiming in this case?

Q. Do you have any understanding of what you're seeking to recover in this lawsuit?

Q. Sure. So it's your understanding that this lawsuit is about your termination from EB Bradley?

Q. Okay. And do you have an understanding of what you're trying to recover or get from this lawsuit?

Q. Are you aware that this lawsuit has nothing to do with your termination from EB Bradley?

Q. Sure. Are you aware that this lawsuit has nothing to do with your termination from EB Bradley?

Q. Well, does it surprise you that this lawsuit is not about your termination from EB Bradley?

(Id. at Ex. 1, pp. 33-34, 48.) The testimony demonstrates that Plaintiff does not want to represent the putative class as to the wage-and-hour claims and that he does not understand the fiduciary duties of a class representative.

There is more. Plaintiff never worked for West Coast Laminating; he only worked as a truck driver for EB Bradley; and he does not have knowledge of the other EB Bradley job positions:

What is your understanding of who you worked for in terms of EB Bradley or West Coast Laminating?

A. I was working for EB Bradley. West Coast Laminating I believe is a subsidiary company of EB Bradley.

Q. Do you have any understanding of what the difference is between EB Bradley and West Coast Laminating?

Q. And when you say "lamination," can you just explain that a little bit more to me?

Q. Do you have any understanding of what West Coast Laminating does as a business?

Q. Okay. Do you have any experience working as a warehouse employee at EB Bradley?

MS. TOSCANO: Objection, vague; ambiguous; lacks foundation as to "warehouse employee."

Q. So it would be correct to say that your experience at EB Bradley is limited to your duties as a truck driver?

Q. Okay. Do you have any knowledge, as you sit here today, whether warehouse employees were allowed to take meal or rest breaks?

Q. Sure. Let me ask it a different way. Do you have any knowledge, as you sit here today, as to how the warehouse employees at EB Bradley performed their duties?

Q. Do you have any knowledge as to whether warehouse employees at EB Bradley were able to take rest breaks?

Q. Do you have any knowledge as to whether EB Bradley warehouse employees were able to take meal breaks?

Q. Okay. When you worked at EB Bradley, did you have any knowledge as to whether the warehouse employees were able to take meal or rest breaks?

Q. Did you ever speak to any warehouse employees about their ability or inability to take meal or rest breaks?

Q. What about the office employees, did you ever speak to any office employees at EB Bradley about their ability or inability to take meal or rest breaks?

(Id. at Ex. 1, pp. 15, 34-35, 41-43, 47.) At minimum, these facts render him incapable of representing the non-truck-driver employees.

1. I am a named Plaintiff in the matter of Harold Levall McGhee v. E.B. Bradley Co., et al., Case Number 22STCV21554.

2. I am over eighteen years old and I make this declaration based on my own personal knowledge. I am making this Declaration in support of Plaintiff’s Motion for Class Certification.

3. I have personal knowledge of the matters stated herein and could and would competently testify thereto, and for matters stated on information and belief, as I believe them to be true.

4. I now understand that any claims I may have or had for wrongful termination relating to my employment with the defendants in this case are excluded from this class action lawsuit.

(McGhee Supp. Decl., ¶¶ 1-4, underlined case name added.) The four paragraphs do not show that Plaintiff was involved in the decision to exclude the wrongful-termination claims or that he agrees with the decision. Nor do they refute the testimony showing his disinterest in being class representative and his apparent ignorance of the duties and obligations.

Bottom line, the differences between Plaintiff’s declarations and his testimony are too stark to satisfy the adequacy prong. The Court finds that he is inadequate.

Plaintiff’s counsel also could have an adequacy problem. To reiterate, the attorneys did not include Plaintiff’s wrongful-termination claims in the SAC (seemingly without his knowledge and perhaps to his detriment [has the statute of limitations run?]), and, contrary to the initial declaration that they filed under his name, his testimony suggests that he does not want to pursue wage-and-hour class claims. The attorneys are trying to use a class representative who (1) appears confused about the nature of the case, and (2) testified that he did not intend to serve as a class representative.

The Court believes an order to show cause should be set to further assess Plaintiff’s counsel’s adequacy and to determine whether sanctions or some other punishment should be imposed. The Court favors this option because, in addition to the problematic evidence related to their representation of Plaintiff, another of Plaintiff’s declarants – putative member Santiago Villalba – has complained that the attorneys doctored his declaration. (See Villalba Supp. Decl., ¶¶ 3-6.) An order to show cause would allow the Court to evaluate whether counsel could adequately represent the class through new class representatives.

Notably, there already was another class representative named Roberto Lopez. His claims were sent to arbitration after the Court granted Defendants’ motion to compel. (See 4/15/24 Ruling Re: Motion to Compel Arbitration; see also 6/3/24 Minute Order.)

Nevertheless, this is the first certification attempt, so, if Plaintiff’s attorneys do survive the order to show cause, Plaintiff would be entitled to receive a chance to name new representatives. Plaintiff would need to find class representatives for each job position given that Defendants have multiple positions at multiple locations. The differing job duties, policies, and experiences tend to indicate that a single new representative would not be sufficient to represent all employees. (See, e.g., Opposition, pp. 9-12.)[1]

* Plaintiff’s motion for class certification is denied because Plaintiff is inadequate;

* the Court is setting an order to show cause concerning Plaintiff’s counsel’s adequacy; and,

* depending on whether counsel survive the order to show cause, the Court would either grant Plaintiff leave to name new class representatives or deny Plaintiff’s motion with prejudice.

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, supra, at ¶ 14:21, emphasis in original.)

• Class: All current and former non-exempt employees employed by Defendants from January 8, 2018 through the date of class certification . . . who did not sign an arbitration agreement prior to July 5, 2022 (“Class Period”).

o Meal Period Subclass: All Class Members who were not paid meal period premiums when their records showed meal period violations during the Class Period.

o Rest Break Subclass: All Class Members who worked at least one shift of 3.5 hours or more during the Class Period.

o Waiting Time Subclass: All Class Members whose employment with Defendants ended at any time from January 8, 2019 through the date of class certification.

o Facial Wage Statement Subclass: All Class Members who received a wage statement from Defendants lacking the rate of pay at any time from January 8, 2019 through the date of class certification.

o Wage Statement Subclass: All Class Members who received a wage statement from Defendants at any time from January 8, 2021 through the date of class certification.

Plaintiff contends the putative members “can self-identify based on the objective class definition, and Defendants, as their employer, ha[ve] their contact information.” (Id. at p. 15.)

Plaintiff cannot show an ascertainable class because the evidence reflects that Defendants had compliant policies and practices, and there is no admissible evidence to establish that putative class members are owed compensation for rest break violations or, for that matter, meal break violations—particularly in light of the fact that Plaintiff has not, and reasonably cannot, offer any method for identifying those employees within the putative class who may have viable claims, absent conducting highly individualized inquiries into each employee’s specific circumstances (e.g., if they took a late or short break, why it was short, whether it was by their own choice, etc...).

The Court agrees with Plaintiff that the class is ascertainable. The facial definition includes adequate objective characteristics and transactional facts, and it is undisputed that the putative members can be ascertained from Defendants’ records.

The Meal Period Subclass definition raises a legal issue – whether the records show meal-period violations. The definition requires legal analyses to be performed prior to putative members being identified. Self-identification would not be possible.

The Rest Break Subclass definition is overbroad. As drafted, it covers people who took rest breaks.

The Waiting Time Subclass and Wage Statement Subclass definitions are also overbroad. They cover all employees, regardless of whether they suffered waiting-time and wage-statement violations.

The Court’s inclination is to let the Facial Waiting Time Subclass definition stand. It appears objective.

Turning to numerosity, Plaintiff argues that there are at least 67 putative members (see Motion, pp. 2, 14-15), maybe 209 (see Reply, pp. 2-3), whereas Defendant claims there are merely 26. (See Opposition, pp. 16-17.)

Even if 26 is the correct number, it is enough for the class. (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].)

Plaintiff remains obligated to show what the actual number is. He fails to show how many members belong not only to the class but also to each subclass. (See Motion, pp. 14-15; see also Reply, pp. 2-3.) These defects would need to be fixed before certification could be granted.

“[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. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

“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 claims Defendants’ July 2020 meal-period policy violated California law in two ways – it required no meal period if employees worked less than six hours, and “it failed to allow a second meal period until employees work[ed] 14 hours[.]” (Motion, p. 9.)

Defendants disagree. They contend Plaintiff’s citation to the July 2020 policy omits the fact that Defendants had California-specific policies that complied with California law. (See Opposition, p. 14.)

Plaintiff’s argument seems to be based on a citation to a July 2020 Oregon meal-period policy. (See ibid.; see also Selmon Decl., Ex. 8, p. EBB_McGhee-047355; id. at Ex. 13, p. Lopez_EBB-000161.)

By contrast, Defendants’ August 2018 employee handbook and July 2020 California meal-period policy appear to have been compliant. (See Selmon Decl., Ex. 5, p. EBB_McGhee_000149; see also id. at Ex. 6, p. EBB_McGhee_000227.)

However, Defendants’ person most knowledgeable (“PMK”) did testify that, for a portion of the class period, a document bearing contents identical to the Oregon policy was provided to putative members. (See Kaur Decl., Ex. A, pp. 51-52.)

In light of the PMK’s testimony, additional evidence needs to be submitted. Defendants’ July 2020 California policy existed at the same time as the Oregon policy. What is unclear is how many putative members received the Oregon policy, how many received the California policy, and how many received both. The current record is ambiguous and does not establish commonality as to this issue.

Next, Plaintiff argues that Defendants’ 2014 and 2018 employee handbooks “only allowed [] second meal periods to be taken ‘at the start of the tenth hour of work’, rather than within the first ten hours of work[.]” (Motion, p. 7; see also Brinker, supra, 53 Cal.4^th at 1041 [requiring a second meal period no later than the end of the tenth hour of work].)

Defendants contend the argument fails because the July 2020 California policy was compliant, and numerous employees filed declarations stating that “the were free to take their second meal periods.” (Opposition, p. 15.)

The Court agrees with Plaintiff. The 2014 and 2018 employee handbooks predate the July 2020 California policy. If nothing else, there is a common legal issue regarding the facial validity of the 2014 and 2018 employee handbooks vis-à-vis second meal periods. This issue is common for the part of the class period when the 2014 and 2018 employee handbooks were in effect (Plaintiff needs to show the in-effect dates).

An issue class would be suitable to resolve the facial-validity legal issue. Defendants’ employee declarations go to common harm and damages. They do not bear on whether 2014 and 2018 employee handbooks were facially valid.

On the current record, a normal class is not appropriate. Plaintiff’s own declarants admit that they might have signed meal-break waivers. (See McGhee Decl., ¶ 9 [declaring that he “may have signed one”]; see also Watkins Decl., ¶ 9 [same]; Vargas Decl., ¶ 10 [same]; Lopez Decl., ¶ 9 [same]; Villalba Decl., ¶ 9 [same]; Schmal Decl., ¶ 10 [same]; Uribe Decl., ¶ 11 [same].) Ostensibly, Plaintiff’s expert does not account for the waivers in his analysis. (See Motion ,p. 11 [assuming a violation if a meal break is not recorded]; see also Woolfson Decl., ¶ 40 [same].) This could make his numbers and conclusions unreliable (see Nelson Decl., ¶ 16), so the Court would be inclined to either find that individual issues predominate with respect to common harm or require the expert to testify under oath at a live hearing.

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.)

Plaintiff contends the 2014 and 2018 employee handbooks illegally required employees “to stay on [the] premises during their rest breaks.” (Motion, p. 7.)

The Court disagrees in part. The plain language of the 2014 employee handbook does not mandate on-premises rest breaks: “All non-exempt Associates may take their rest periods in a place away from their normal work area but in a place to ensure an Associate can promptly resume work at the end of the rest period. . . .” (Kaur Decl., Ex. A at Ex. 10, p. 20.)[2]

The 2018 employee handbook does create a common issue. It states that “[a]ll non-exempt Associates may take their rest breaks in a designated area away from their normal work area, but not off the work premises.” (Id. at Ex. A at Ex. 3, p. McGhee_WCL 000043; see also id. at Ex. A at Ex. 4, p. EBB_McGhee_000149 [same].) Per case law, “[d]uring required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” (Chin, supra, at ¶ 11:829.6 [quoting Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5^th 257].) On-premises rest breaks have only been permitted for special job positions – e.g., paramedics, security guards, and “employees in safety-sensitive positions at petroleum facilities[.]” (Ibid.) Since Defendants fail to show that this case involves such positions, the Court believes the facial validity of the 2018 employee handbook is a predominating common legal question. The class period for this issue is the years and months when the 2018 employee handbook was in effect (Plaintiff must establish the in-effect dates).

Again, the Court could use an issue class to resolve the facial-validity legal issue.

The reliability of Plaintiff’s expert’s analysis is questionable and does not support a finding of common harm. At this time, the Court finds a normal class inappropriate.

The liability theory of the Facial Wage Statement Subclass is that Defendants’ wage statements “fail to list rates of pay for regular hours and overtime hours.” (Motion, p. 13.)

Plaintiff fails to show commonality. His support for this theory is a single check that Defendants issued to him on his last day of work. (See ibid.; see also McGhee Decl., Ex. A, p. EBB_McGhee_000011.) Yet he ignores many, many other wage statements that do state the rates of pay. (See Selmon Decl., Ex. 11, pp. EBB_McGhee_000001-EBB_McGhee_000009; see also id. at Ex. 14, pp. EBB_McGhee_000310-EBB_McGhee_000339.) The overwhelming majority of the evidence goes against this theory.

The Waiting Time Subclass and Wage Statement Subclass subclasses are derivative. Because Plaintiff fails to demonstrate common harm, he fails to meet his burden.

“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.)

Defendants’ opposition brief does not address typicality. (See Opposition, pp. 6-20.)

The Court finds that Plaintiff is typical as to the facial-validity legal issues.

The typicality prong is moot as to the other issues since Plaintiff fails to show common harm.

“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 Court does not need to go there. Commonality is limited to the facial-validity legal issues. Those issues could be decided via issue classes. If the Court ends up granting Plaintiff leave to name new class representatives, the issue-class method would be manageable and superior.

Defendants move to strike Plaintiff’s declaration and the declarations of putative members Cleven Watkins, Juan Vargas, Santiago Villalba, Cody Schmal, and Diana Uribe. Defendants contend:

* Villalba wants to withdraw his declaration because it is different than what he told Plaintiff’s counsel;

Defendants’ request is denied. The Court considered the declarations and found them unhelpful to Plaintiff. The Court believes they should remain in the record.

The exceptions are Vargas’s declaration and Villalba’s declaration. If they still want to withdraw them, the Court would allow them to be withdrawn.

[1] Also, Plaintiff would need to find representatives who did not sign meal-break waivers.

[2] Plaintiff cites employee declarations to show that the employees had to stay on the premises. The declarations do not state the years when the breaks occurred. (See Watkins Decl., ¶ 10; see also Vargas Decl., ¶ 6; McGhee Decl., ¶ 11; Villalba Decl., ¶ 10; Schmal Decl., ¶ 11; Uribe Decl., ¶ 12.) They fail to prove commonality relative to the in-effect dates of the 2014 employee handbook.