Judge Elaine Lu, Case Number: 23STCV12268, Date: 2025-05-14 Tentative Ruling

This is a putative wage-and-hour class action. Plaintiffs Jessica Padron (“Padron”) and Julie Ann Rodriguez (“Rodriguez”) (jointly “Plaintiffs”) allege that they and the putative class members are and were employed by Defendants CA Senior Living EE Group, LLC, SH1 Shoreline MGMT, LLC, Maya Turner, Christopher Belford (collectively “Defendants”) and Ernest Lewis and that Defendants violated the Labor Code, Industrial Welfare Commission wage orders, the Investigative Consumer Reporting Agencies Act, and the Business and Professions Code.

On May 30, 2024, Plaintiff filed the instant class action complaint. In the complaint, Plaintiffs assert eleven causes of action for (1) failure to pay overtime wages, (2) failure to provide meal periods, (3) failure to provide rest periods, (4) failure to provide accurate itemized wage statements, (5) waiting time penalties, (6) failure to reimburse business expenses, (7) failure to furnish employment records, (8) failure to provide notice of employment information, (9) violation of the California’s Investigative Consumer Reporting Agencies Act (“ICRAA”), (10) violation of California’s Credit Reporting Agencies Act, and (11) unfair business practices.

On June 21, 2024, in light of Plaintiffs’ separate and individual claims against Defendants, the Court bifurcated Plaintiffs’ motion for class certification with Phase One addressing only typicality and adequacy, and Phase Two addressing all other remaining issues for class certification. (Minute Order 6/21/24.)

On December 6, 2024, Plaintiffs dismissed Defendant Ernest Lewis, leaving only the claims against Defendants.

On December 2, 2024, Plaintiffs filed the instant Phase One motion for class certification. On January 31, 2025, Defendants filed an opposition. On February 6, 2025, Plaintiffs filed a reply.

On February 20, 2025, after oral argument, the Court took the matter under submission. (Minute Order 2/20/25.) On March 24, 2025, the Court took the matter out of submission for additional briefing. (Minute Order 3/24/25.) Pursuant to the Court’s Order, on March 27, 2025, Plaintiff filed conformed copies of the compliant in each of Plaintiffs’ respective individual actions. Pursuant to the Court’s Order, on April 10, 2025, Defendants filed a supplement brief addressing how the settlement agreement between Plaintiff Rodriguez and Defendants and how it prevents Plaintiff Rodriguez from freely and fully testifying in the instant action. On May 5, 2025, pursuant to the Court’s March 24, 2025 Minute Order, the parties filed a joint statement regarding the status of Plaintiff Padron’s individual action.

Defendants own and operate senior living centers and/or nursing homes throughout California. (Complaint ¶ 25.) “Defendants operated the workplace facility located 2640 Honolulu Avenue, Montrose, California 91020 under the brand name(s) Sparr heights estates senior living and/or Mountview senior living.” (Id. ¶ 6.)

Defendants hired and employed Plaintiffs as nurses, caregivers, and/or medication aides. (Id. ¶¶ 26-27.) “As nurses, caregivers, and/or medication aides, Plaintiffs average work schedule was from approximately 10:00 p.m. to 7:00 a.m. and/or approximately 6:00 am to 3:00 pm and therefore, were entitled to at least two 10-minute rest periods each day that they worked.” (Id. ¶ 27.)

However, “Plaintiff[s] regularly did not receive duty-free meal and rest periods. Defendants’ volume of work, policies of understaffing, and resident calls prevented Plaintiffs from taking their duty-free meal and rest periods during their employment.” (Id. ¶ 28.) “Plaintiffs and other members of the Class frequently did not receive a first meal period by the end of the fifth hour of work, due to the need to attend to residents, respond to phone calls in a timely manner, attend meetings, and respond to questions from residents and Defendants, as well as due to understaffing.” (Id. ¶ 29.) “The meal and rest periods that Defendants ‘provided’ were not duty-free. Defendants had written and/or oral policies that restricted Plaintiffs and other members of the Class from leaving the workplace during meal and/or rest periods. Moreover, because of workload and lack of staff, Plaintiffs and other members of the Class had no choice but to work through their meal and rest periods. Defendants also observed Plaintiffs and other members of the Class working through their meal and rest periods, but did not take any steps to ensure that they had the opportunities to take duty-free meal and rest periods.” (Id. ¶ 30.) “Defendants denied Plaintiffs and other members of the Class lawful duty-free meal periods, and did not pay one additional hour of pay at the employee’s regular rate for each day that a lawful duty-free meal period that was not provided.” (Id. ¶ 31.)

In addition, Defendants failed to pay their non-exempt hourly-paid employees – including Plaintiffs – for overtime. (Id. ¶ 34(a).) Defendants failed to provide Plaintiffs and their non-exempt hourly-paid employees with accurate itemized wage statements. (Id. ¶ 34(d).) Defendants failed to provide Plaintiffs and their non-exempt hourly-paid employees with timely production of their employment records upon request. (Id. ¶ 34(e).) Defendants failed to reimburse Plaintiffs and their non-exempt hourly-paid employees for necessary incurred business expenses. (Id. ¶ 34(f).) Defendants failed to provide Plaintiffs and their non-exempt hourly-paid employees with notice of employment related information. (Id. ¶ 34(g).) Defendants failed to reimburse Plaintiffs and their non-exempt hourly-paid employees all wages due upon separation from employment. (Id. ¶ 34(h).)

Finally, “Defendants unlawfully conducted credit and/or background checks of job applicants including Plaintiffs and other members of the Class in violation of state law.” (Id. ¶ 38.)

In conjunction with the opposition, Defendants object to portions of the declarations of Plaintiff Julie Ann Rodriguez and Plaintiff Jessica Padron. The Court rules as follows:

Code of Civil Procedure § 382 allows a court to certify a class action “when the question is one of a common interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . .”. Additionally, “[t]here must be questions of law or fact common to the class that are substantially similar and predominate over the questions affecting the individual members; the claims of the representatives must be typical of the claims or defenses of the class; and the class representatives must be able to fairly and adequately protect the interests of the class.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237–238.)

Stated differently, there are two broad requirements for a class action: (1) an ascertainable class; and (2) a well-defined community of interest in the questions of law and fact involved. (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 913; See also Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (The party seeking certification “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”).

“[I]n determining whether a class is ascertainable [courts] examine the class definition, the size of the class and the means of identifying class members[.]” (Reyes v. San Diego County Bd. of Supervisors (1987) 196 Cal.App.3d 1263, 1274.) “The community of interest requirement involves three factors: ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470].) Further, “a class action cannot be maintained where each member's right to recover depends on facts peculiar to his case … because the community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the ‘class judgment’ determining issues common to the purported class.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)

California follows the procedures set forth under Federal Rules of Civil Procedure 23 for class actions, whenever California authority is lacking. (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 821 [noting that for purposes of class action lawsuits, where California law is silent “rule 23 of the Federal Rules of Civil Procedure prescribes procedural devices which a trial court may find useful.”]; accord City of San Jose, supra, 12 Cal.3d at p.453 [“This court has urged trial courts to be procedurally innovative, encouraging them to incorporate procedures from outside sources in determining whether to allow the maintenance of a particular class suit. More specifically, we have directed them to rule 23 of the Federal Rules of Civil Procedure…”].)

In addition to whether there is (1) an ascertainable class and (2) a well-defined commonality of interest additional factors must be considered. The potentially mandatory and discretionary factors applicable to class certification include:

· Whether there is a well-defined community of interest as to common questions of law or fact that predominate (mandatory);

· Whether the person representing the class is able to fairly and adequately protect the interests of the class; and

· Whether a class action is superior (including whether individual plaintiffs would bring claims for small sums).

See e.g., CCP § 382; Fed. Rules Civ.Proc., rule 23, 28 U.S.C.A.; Linder, supra, 23 Cal.4th at p.435; Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1324; Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1014; In re Cipro Cases I and II (2004) 121 Cal.App.4th 402, 409.)

“In California it is settled that the class action proponent bears the burden of establishing the propriety of class certification.” (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 922.) “[S]uch burden clearly contemplates a demonstration of predominance and manageability[.]” (Ibid.) This usually requires demonstration of predominance of common issues of law and fact and manageability of the proposed class. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1103–1104.) In making the determination as to whether the requirements for a class action have been met, a court may consider not only the parties’ pleadings but also extrinsic evidence, including declarations and discovery responses. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328–329.)

Importantly, in weighing the evidence, a court does not evaluate whether the claims asserted are legally or factually meritorious. (Linder, supra, 23 Cal.4th at pp.439–440.) However, “[w]hen evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them.” (Brinker Restaurant Corp., supra, 53 Cal.4th at pp.1023–1024.)

“In wage and hour cases where a party seeks class certification based on allegations that the employer consistently imposed a uniform policy or de facto practice on class members, the party must still demonstrate that the illegal effects of this conduct can be proven efficiently and manageably within a class setting.” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29.)

a. All current and former non-exempt employees of Defendants who worked in the State of California (“Class Complainants”) who were not paid for all hours worked at the correct regular rate of pay, including any overtime compensation owed for hours worked in excess of 8 hours each day or 40 hours in each week, as well as any double time compensation owed for hours worked in excess of 12 hours each day within four (4) years of commencement of this action through the date of final disposition of this action;

b. All current and former non-exempt employees of Defendants who worked in the State of California (“Class Complainants”) who were denied lawful duty-free meal periods and who were not paid one additional hour of pay at the employees’ regular rate for each day that a lawful duty-free meal period was not provided within four (4) years of the date of commencement of this action through the date of final disposition of this action;

c. All current and former non-exempt employees of Defendants who worked in the State of California (“Class Complainants”) who were not provided with duty-free rest periods and who were not paid one additional hour of pay at the employee’s regular rate for each day that a rest period was not provided within four (4) years of the date of commencement of this action through the date of final disposition of this action;

d. All current and former employees of Defendants who worked in the State of California (“Class Complainants”) who were not provided with accurate itemized wage statements within four (4) years of the date of commencement of this action through the date of final disposition of this action;

e. All current and former employees of Defendants who worked in the State of California (“Class Complainants”) who incurred necessary business-related expenses and costs that were not reimbursed within four (4) years of the date of commencement of this action through the date of final disposition of this action;

f. All current and former employees of Defendants who worked in the State of California (“Class Complainants”) who requested their employment records and were not provided the records within four (4) years of the date of commencement of this action through the date of final disposition of this action;

g. All current and former employees of Defendants who worked in the State of California (“Class Complainants”) who were not provided with notice of employment related information pursuant to California Labor Code 2810.5 within four (4) years of the date of commencement of this action through the date of final disposition of this action;

h. All former employees of Defendants who worked in the State of California (“Class Complainants”) that did not receive a timely payment of wages due and owing upon separation of their employment within four (4) years of the date of commencement of this action through the date of final disposition of this action;

i. All persons residing in the State of California (“Class Complainants”) who applied for a job with Defendants in the State of California and did not receive a proper statutory disclosure and authorization prior to executing Defendants’ standard “Background Check Disclosure” form within five (5) years of the date of commencement of this action through the date of final disposition of this action;

j. All persons residing in the State of California (“Class Complainants”) who were required to submit to a background check and requested a copy of the consumer report by checking a box on Defendants’ disclosure and authorization form, but did not receive a timely copy of the investigative consumer report after it was provided to Defendants, within five (5) years of the date of commencement of this action through the date of final disposition of this action;

k. All persons residing in the State of California (“Class Complainants”) who were required to submit to a background check for employment purposes but did not receive proper written notice from Defendants that they are obtaining a credit report, within five (5) years of the date of commencement of this action through the date of final disposition of this action.

As previously set forth in the Court’s prior minute order bifurcating Plaintiffs’ motion for class certification, Phase One is only to address typicality and adequacy. (Minute Order 6/21/24.) For the reasons set forth below, the instant motion for class certification, phase one is DENIED.

Defendants contend that the instant motion for phase one of class certification must be denied because Plaintiff failed to file a trial plan.

The Court’s June 21, 2024 minute order bifurcating the instant motion for certification required to Plaintiffs to address only typicality and adequacy in phase one and left all remaining issues to be addressed in phase two. (Minute Order 6/21/24.) The Court has not yet addressed elements such as commonality. Thus, a trial plan would not yet be useful in determining whether the class can be certified. To the extent that the Court’s June 21, 2024 minute order implied that a trial brief must be filed with phase one, this is merely a result of poor and unclear wording. The Court’s intention by stating “[t]he plaintiff is reminded that the plaintiff’s brief must contain a trial plan. The trial plan must be filed as a separate brief” was to remind Plaintiffs that a trial plan will be necessary – in phase two – and that it must be filed as a separate document.

Defendants contend that Plaintiffs failed to provide any notice as to the grounds for the assertion of class claims against the remaining individual defendants – Christopher Belford and Maya Turner.

The notice of motion sets forth that it is seeking certification of various sets of current and former non-exempt employees of all Defendants. Though the complaint admits that the individual defendants are not employers, (see e.g., Complaint ¶¶ 8-9) , questions of the merits of claims against various defendants are not generally considered in the context of whether a class can be certified. (Brinker Restaurant Corp., supra, 53 Cal.4th at p.1023, [“disputes over the merits of a case generally must be postponed until after class certification has been decided [Citation], with the court assuming for purposes of the certification motion that any claims have merit”].) Accordingly, Defendants’ contention regarding notice to the individual defendants does not warrant denial of the instant motion. Rather, such issues should be addressed in a dispositive motion such as a demurrer, motion to strike, or summary judgment, or through stipulation of the parties narrowing the proposed class claims to the appropriate parties.

Plaintiffs assert that their claims are typical of the proposed putative classes. In opposition, Defendants contend that neither Plaintiff Rodriguez nor Plaintiff Padron has typical claims of the class.

The purported class representative’s claim must be “typical” but not necessarily 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. (Classen v. Weller (1983) 145 Cal.App.3d 27, 45.) Thus, it is not necessary that the class representative have personally incurred all of the damages suffered by each of the other class members. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 228.)

Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. 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.

Plaintiff Rodriguez worked for Defendants as a Caregiver before being promoted to Medicine Technician at Defendants’ Montrose facility from August 24, 2020 to her termination on September 2, 2022. (Rodriguez Decl. ¶ 2.) Since the start of her employment with Defendants, Defendants “suffered from severe understaffing.” (Rodriguez Decl. ¶ 3.) Due to this understaffing, Plaintiff Rodriguez was not allotted meal and rest breaks as there was no one to cover the residents/patients that she oversaw, and Plaintiff Rodriguez was forced to work through these breaks. (Rodriguez Decl. ¶ 3.) Plaintiff Rodriguez regularly worked overtime, but her timecard did not accurately reflect her overtime hours. (Rodriguez Decl. ¶ 4.)

After Plaintiff Rodriguez was initially hired, Defendants ran a background check on Plaintiff Rodriguez. (Rodriguez Decl. ¶ 5.) “However, [Plaintiff Rodriguez] was not given a copy of such a background check or afforded an opportunity to request a copy.” (Rodriguez Decl. ¶ 5.) Plaintiff Rodriguez’s and the putative class members’ claims and injuries are based on the same legal theories and arise out of Defendants’ understaffing and failure to provide copies of background checks. (See e.g., Complaint ¶¶ 25-40.) Moreover, though Plaintiff Rodriguez initially had a separate FEHA claim, her individual FEHA claim has now been resolved. (Rodriguez Decl. ¶ 6.)

In opposition, Defendants contend that Plaintiff Rodriguez’s claims are not typical of the proposed putative class members because (1) Plaintiff Rodriguez only worked for the Montrose facility, and (2) Plaintiff Rodriguez “confirmed during her deposition that at no point was she ever reprimanded for taking a meal period, she was never told not to take a meal period by anyone from Defendants, nor was she ever forced to skip a meal period by anyone at Defendants to continue looking after residents.” (Opp. at p.11:8-11.) Neither contention is supported and neither warrants denial of the instant motion for class certification.

Though it is true that Plaintiff Rodriguez only worked for a single location, Defendants fail to cite any authority indicating that as a matter of law, an employee working at a single location cannot represent employees who worked at different locations. Rather, Defendants merely argue in the memorandum that “[g]iven each facility has different management, supervisors, and residents of differing needs, Rodriguez could not have had the same or similar experience as those at other facilities because Rodriguez specifically attributes her claims to understaffing.” (Opp. at p.10:25-27.) This statement in the opposing memorandum is not evidence. (Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 697 [“ ‘[I]t is axiomatic that statements made in briefs are not evidence’ [Citation.]”].) In fact, Defendants cite no evidence showing that the claimed policy of understaffing is not endemic to all of Defendants’ facilities as alleged. (Complaint ¶ 28.)

Accordingly, there is no basis in law or fact to deny certification on the grounds that Plaintiff Rodriguez only worked at Defendants’ Montrose facility.

Defendant’s alternative argument that Plaintiff Rodriguez has “admitted” that she did not suffer any meal or rest period violations is also unavailing. Even assuming that Plaintiff Rodriguez did not suffer the alleged meal and rest period violations, it is not necessary for Plaintiff Rodriguez as a proposed class representative to have personally incurred all of the damages suffered by each of the other class members. (Wershba, supra, 91 Cal.App.4th at p.228.) Moreover, Plaintiff Rodriguez did not admit in deposition that she did not suffer meal period or rest period violations. Plaintiff Rodriguez testified that she did not recall getting in trouble for taking a meal period. (Sarkisian Decl. ¶ 10, Exh. F., at p.219:18-21.) Plaintiff Rodriguez further states that she does not recall a manger or supervisor telling her to skip a lunch. (Sarkisian Decl. ¶ 10, Exh. F., at pp.219:22-220:5.) Plaintiff Rodriguez did not recall anyone specifically telling her not to take a lunch break. (Sarkisian Decl. ¶ 10, Exh. F., at p.221:5-8.) However, Plaintiff Rodriguez testified that she did not have a choice to take a lunch break because “[w]hen there's not enough staff, [Plaintiff Rodriguez] c[ouldn’t] abandon [her] patients just so [she] c[could] honor a fifth-hour break. It’s not safe.” (Sarkisian Decl. ¶ 10, Exh. F., at pp.220:22-221:1.) Plaintiff Rodriguez’s testimony that she could not take a break due to understaffing and that it was not safe for her to take said breaks is consistent with the allegations of understaffing causing the putative class to not be able to take required breaks. (Complaint ¶ 28.)

Accordingly, the Court finds that Plaintiffs have established that Plaintiff Rodriguez has claims typical of the proposed class.

Plaintiff Padron worked for Defendants as a Nurse at Defendants’ Montrose facility from July 22, 2022 to her termination in September 2022. (Padron Decl. ¶ 2.) Since the start of her employment with Defendants, Defendants “suffered from severe understaffing.” (Padron Decl. ¶ 3.) Due to this understaffing, Plaintiff Padron was not allotted meal and rest breaks as there was no one to cover the residents/patients that she oversaw, and Plaintiff Padron was forced to work through these breaks. (Padron Decl. ¶ 3.) Plaintiff Padron regularly worked overtime, but her timecard did not accurately reflect her overtime hours. (Padron Decl. ¶ 4.) After her termination, Plaintiff Padron “was not paid [her] final wages and was still owed compensation for the pay period beginning on August 21, 2022, and ending on September 3, 2022.” (Padron Decl. ¶ 6.)

After Plaintiff Padron was initially hired, Defendants ran a background check on Plaintiff Padron. (Padron Decl. ¶ 7.) “However, [Plaintiff Padron] was not given a copy of such a background check or afforded an opportunity to request a copy.” (Padron Decl. ¶ 7.) Thus, Plaintiff Padron’s and the putative class members’ claims and injuries are based on the same legal theories and arise out of Defendants’ understaffing, failure to provide copies of conducted background checks, and failure to timely pay the wages due upon separation. (See e.g., Complaint ¶¶ 25-40.)

In opposition, Defendants contend that Padron’s claims are not typical because “1) Padron only ever worked at the Sparr Heights location; 2) she maintained separate, full-time employment away from Sparr Heights; and 3) she worked as a ‘charge nurse’ and oversaw various employees, including CNAs.” (Opp. at p.9:2-5.) These contentions do not warrant denial of the instant motion for class certification.

Though Plaintiff Padron only worked for a single location[2], Defendants fail to cite any authority indicating that as a matter of law, an employee working at a single location cannot represent employees who worked at different locations. Rather, Defendants merely argue in their memorandum that “[g]iven each facility has different management, supervisors, and residents of differing needs, Padron could not have had the same or similar experience as those at other facilities because Padron specifically attributes her claims to understaffing at the Sparr Heights facility.” (Opp. at p.9:25-27.) This statement in the opposing memorandum is not evidence. (Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 697 [“ ‘[I]t is axiomatic that statements made in briefs are not evidence’ [Citation.]”].) In fact, Defendants cite no evidence showing that Plaintiffs claimed policy of understaffing is not endemic to all of Defendants’ facilities as alleged. (Complaint ¶ 28.) Accordingly, there is no basis in law or fact to deny certification on the grounds that Plaintiff Padron only worked at a single facility of Defendants.

Similarly, Defendants fail to cite any authority to support their contention that Plaintiff Padron must be a full-time employee to be a typical class representative as a matter of law. Without evidence, Defendants claim that “Padron’s claims cannot be typical of the class because her availability, hours worked, and entitlement to meal and rest periods significantly differed from that of, for example, putative class members who worked full-time and did not maintain second jobs.” (Opp. at p.9:19-22.) Assertions in memorandum are not evidence. (Turrieta, supra, 16 Cal.5th at p.697.) Defendants further claim that because Padron had a second full-time job, she could not work 40 hours per week for defendants and therefore cannot have an overtime claim typical of the proposed putative class. This contention is unsupported. It is not literally impossible for Plaintiff Padron to work more than 40 hours for Defendants while working a second full-time job as there are 168 hours in any given week. Moreover, a claim for overtime occurs after 40 hours in one workweek or 8 hours in one workday. (Lab. Code, § 510(a).) Thus, Plaintiff Padron could have worked more than 8 hours in one day for Defendants and be owed overtime like other putative class members. Regardless, there is no requirement that Plaintiff Padron suffer the exact same injury to fulfill the typicality requirement. (Wershba, supra, 91 Cal.App.4th at p.228.)

Finally, Defendants contend that Plaintiff Padron claims are not typical because Padron was a charge nurse. Plaintiff Padron states in a deposition that as a charge nurse she was in charge of an unspecified number of CNAs. (Sarkisian Decl. ¶ 3, Exh. A, at p. 138.) Defendants claim that she is therefore atypical of the putative class members because she oversees an unspecified number of employees. Further, “[i]n overseeing these employees, Padron may have been directly responsible for some of the meal, rest, and overtime.” (Opp. at p.10:13-15.) Again, Defendants cite no evidence to support these claims. Defendants also fail to cite any authority for the proposition that an employee with any sort of supervisory role can never serve as a class representative. Moreover, Plaintiffs’ claims are – in large part – based on understaffing that affected her working conditions. (Complaint ¶¶ 25-40.) Moreover, there is no evidence that as a charge nurse, Plaintiff Padron had any control over staffing.

Rather, based on the evidence before the Court, Plaintiff Padron suffered the same injuries as alleged by putative class members – i.e., missing breaks and overtime due to understaffing, failure to provide the results conducted background checks, and failure to timely pay the wages due upon separation. Accordingly, Plaintiffs sufficiently show that Plaintiff Padron’s claims are typical of the proposed class.

“Adequacy of representation depends on whether the plaintiff's attorney is qualified to conduct the proposed litigation and the plaintiff's interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.)

“The primary criterion in determining adequacy of representation is whether the representative, through qualified counsel, ‘vigorously and tenaciously protected the interests of the class.’” (Simons v. Horowitz (1984) 151 Cal.App.3d 834, 846.) Additionally, the class representative must “raise claims reasonably expected to be raised by the members of the class[.]” (City of San Jose, supra, 12 Cal.3d at p.464.) The fiduciary duty must be undertaken free of demonstrable conflicts of interest with other class members. (Amchem Products, Inc. v. Windsor (1997) 521 U.S. 591, 625–626.)

Attorney Omid Nosrati is the principle of Nosratilaw, A Professional Law Corporation and Plaintiffs’ lead attorney of record. (Nosrati Decl. ¶ 1.) Nosrati has been a licensed attorney since December 2001 and is admitted to practice in the United States District Court, Southern, Central, and Eastern District of California; and all California State Courts. (Nosrati Decl. ¶ 2.) Nosrati has been practicing employment law matters for approximately 21 years. (Nosrati Decl. ¶ 3.) In 2003, Nosrati established his law firm which is dedicated to representing employees in employment law and wage and hour matters, including class actions and PAGA claims. (Nosrati Decl. ¶ 4.) Nosrati is a member of the California Employment Lawyers Association and has been awarded “Superlawyers” for seven consecutive years. (Nosrati Decl. ¶ 5.) Nosrati has been appointed as class counsel in employment wage and hour claims in eleven separate class actions where final approval of the class action settlements has been granted. (Nosrati Decl. ¶ 6.) Nosrati has pursued two other class action and is currently pursuing another wage and hour class action in Kelley v. Sprout Mortgage, LLC, Orange County Superior Court, Case No. 30-2022-01246916-CU-OE-CXC. (Nosrati Decl. ¶ 7.)

In opposition, Defendants contend that Nosrati is not an adequate class counsel because he “fails to list any relevant experience they have with class or representative actions in which claims under the FRCA and ICRAA are alleged.” (Opp. at p.18:22-24.) Defendants have not cited nor is the Court aware of any authority requiring class counsel to have prior experience representing a class on every claim asserted. In light of Nosrati’s expansive experience in litigating employment wage and hour class actions and his 20+ years of experience as an attorney, the Court finds that Plaintiffs’ Counsel has adequate experience to adequately represent the class.

Plaintiff Rodriguez previously filed an individual case against Defendants for wrongful termination. (Rodriguez Decl. ¶ 6.) Plaintiff Rodriguez has settled that individual suit against Defendants. (Rodriguez Decl. ¶ 6; Sarkisian Decl. ¶ 8, Exh. D.) Thus, Rodriguez does not clearly have conflicting incentives and priorities than the class members. (See e.g., Wilson v. Conair Corporation (E.D. Cal., June 3, 2016, No. CV11400894WBSSAB) 2016 WL 7742772, at *4 [finding that when a proposed class representative has an ongoing individual case against the defendant “[t]here is a substantial risk that plaintiff will therefore have different priorities and litigation incentives than the class members. She could, for example, be tempted to accept an inadequate settlement offer on the class claims in exchange for a larger settlement on her personal injury claims or, alternatively, be motivated to proceed to trial when it may be in the best interest of the class to settle.”].) Rodriguez states that she “can remain objective and still adequately represent the interests of the punitive class members.” (Rodriguez Decl. ¶ 6.)

In opposition, Defendants assert that Rodriguez would not be an adequate class representative because she is limited by the terms of the settlement agreement between Plaintiff Rodriguez and Defendants. The settlement agreement provides in relevant part that:

(a) Confidentiality of Agreement. Plaintiff represents, warrants, and confirms that Plaintiff has not disclosed or discussed, orally or in writing, the negotiations and discussions leading to this Agreement, the existence of this Agreement, or any of its terms or conditions with any person, organization, or entity other than Plaintiff’s spouse or domestic partner, attorney, or tax advisor. The Parties mutually agree to maintain confidentiality, except as required by law, regarding the allegations in the Action. Upon receipt of an inquiry regarding the Action or this Agreement from someone other than Plaintiff’s spouse or domestic partner, attorney, or tax advisor, the Parties shall state only that “the matter has been resolved.” If Plaintiff is required by law or pursuant to a subpoena to disclose information regarding the Action or this Agreement, Plaintiff agrees to promptly provide written notice to Bryan L. Hawkins of Stoel Rives LLP at 500 Capitol Mall Ste. 1600, Sacramento, CA 95814.

(b) Permitted Disclosures. Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Plaintiff shall promptly provide written notice of any such order to an authorized officer of Defendant . [sic]

Nothing in this Agreement prohibits or restricts Plaintiff’s testimony in an administrative, legislative, or judicial proceeding, as requested by court order, subpoena, or written request from an administrative agency or the legislature, regarding alleged criminal conduct or alleged sexual harassment on the part of Defendant.

6. Non-Disparagement. Plaintiff agrees and covenants that Plaintiff shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or maliciously false, or disparaging remarks, comments, or statements concerning Defendant or its businesses, or any of its employees, officers, or directors now or in the future. Nothing in this agreement prevents Plaintiff from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Plaintiff has reason to believe is unlawful.

This Section further does not, in any way, restrict or impede Plaintiff from exercising protected rights to the extent that these rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. Plaintiff agrees that Plaintiff shall promptly provide written notice of any such order to Bryan L. Hawkins at Stoel Rives LLP, 500 Capitol Mall, Suite 1600, Sacramento, California 95814.

Defendants assert that these confidentiality and non-disparagement clauses prevent Plaintiff Rodriguez “from sharing without obstruction certain information that might have bearing on the class action, such as certain discussions with specific managers or coworkers. This perceived impairment would hinder Rodriguez’s ability to effectively advocate for the interests of the class, which requires open communication and full disclosure of all relevant facts and evidence.” (Opp. at p.15:1-5.) Defendants further assert that the non-disparagement clause “may affect Rodriguez’s ability to advocate with the necessary vigor or urgency against Defendants and their agents’s conduct, especially considering Rodriguez’s individual action involved allegations of understaffing and missed meal periods.” (Opp. at p.15:8-11.)

Under the settlement agreement, Plaintiff Rodriguez “agree[d] to maintain confidentiality, except as required by law, regarding the allegations in the Action.” (Sarkisian Decl. ¶ 8, Exh. D at § 5 [bold added].) In her individual action, Plaintiff Rodriguez repeatedly alleged that Defendants’ facility was understaffed. (Sarkisian Decl. ¶ 6, Exh. C [Rodriguez Individual Complaint ¶ 19 [“Around this time, Plaintiff began making complaints about patient safety concerns and understaffing issues at the facility to the Executive Director, ERNEST LEWIS (‘LEWIS’)”] [bold added]]; [Rodriguez Individual Complaint ¶ 22 [“Plaintiff stated that she was unable to take lunch breaks because she was taking care of patients and that the facility was short staffed for her coverage.”] [bold added]].) Further, during the individual action, Plaintiff Rodriguez testified repeatedly that Defendants’ facility was understaffed. (Supp. Sarkisian Decl. ¶¶ 4-5, Exh. B [Rodriguez Individual Action Depo. Part 1 at pp.27:1-27:4, 28:12-28:15]; Exh. C [Rodriguez Individual Action Depo. Part 2 at pp.205:1-205:6, 206:1-206:10]; Exh. D [Rodriguez Individual Action Depo. Part 3 at pp.269:24-270:4, 301:1-301:7].) In her individual action, Plaintiff Rodriguez further sought information on Defendants’ “staffing policies” by way of the Notice of Deposition of Person Most Knowledgeable. (Supp. Sarkisian Decl. ¶ 7, Exh. E.) Because Plaintiff Rodriguez alleged and litigated understaffing at Defendants’ facilities in her individual action, the settlement agreement binds Plaintiff Rodriguez to maintain confidentiality of her claims of understaffing. (Sarkisian Decl. ¶ 8, Exh. D at § 5 [“The Parties mutually agree to maintain confidentiality, except as required by law, regarding the allegations in the Action.”].)

In the instant action, Plaintiffs allege that one of the reasons that they – and the putative class members – could not take duty-free meal and rest periods was due to Defendants’ understaffing. (Complaint ¶ 28 [“Plaintiff regularly did not receive duty-free meal and rest periods. Defendants’ volume of work, policies of understaffing, and resident calls prevented Plaintiffs from taking their duty-free meal and rest periods during their employment.”], [bold added]; Complaint ¶ 29 [“Plaintiffs and other members of the Class frequently did not receive a first meal period by the end of the fifth hour of work, due to the need to attend to residents, respond to phone calls in a timely manner, attend meetings, and respond to questions from residents and Defendants, as well as due to understaffing.”], [bold added]; Complaint ¶ 30 [“Moreover, because of workload and lack of staff, Plaintiffs and other members of the Class had no choice but to work through their meal and rest periods.”].) Moreover, in her deposition for the individual action, Plaintiff Rodriguez testified that she did not take a lunch break because “there[] [was] not enough staff[.]” (Supp. Sarkisian Decl. ¶ 5, Exh. C [Rodriguez Individual Action Depo. Part 2 at p.220:24-25].) Thus, Defendants’ alleged understaffing is at issue in the instant action just as it was in the individual action.

Pursuant to Rodriguez’s settlement agreement, Plaintiff Rodriguez agreed to maintain confidentiality of her allegations regarding Defendants’ understaffing – which is at issue in the instant class action. Thus, Plaintiff Rodriguez would not be able to testify or otherwise disclose Defendants’ understaffing – which is one of the alleged causes of Defendants failing to provide rest and meal periods.

Moreover, no exception under the settlement agreement would be applicable. Under the confidentiality section of the settlement agreement, Plaintiff Rodriguez is permitted to disclose her allegations as required by applicable law or regulation, or pursuant to a valid court order. (Sarkisian Decl. ¶ 8, Exh. D at § 5(b).) Plaintiffs do not identify nor is this Court aware of any law or regulation requiring Plaintiff Rodriguez to disclose Defendants’ understaffing in this Court. Nor is there a Court Order requiring Plaintiff Rodriguez to disclose Defendants’ understaffing. Further, Plaintiffs provide no reason why this Court should order Plaintiff Rodriguez to break a mutually agreed upon confidentiality clause in the settlement agreement in order for Plaintiff Rodriguez to maintain a suit against the other parties to the settlement agreement. Especially given that the instant class action was ongoing when Plaintiff Rodriguez settled the individual claim. If it were the parties’ intent for Plaintiff Rodriguez to be able to testify without limitation in the instant action, the parties could have inserted a clause that exempts the instant action from the confidentiality portion of the settlement agreement. However, the parties did not do so.

Nor is the exemption in the non-disparagement clause of the settlement agreement applicable. The non-disparagement clause provides that “[n]othing in this agreement prevents Plaintiff from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Plaintiff has reason to believe is unlawful.” (Sarkisian Decl. ¶ 8, Exh. D at § 6 [italics added].) Because this is in a separate section of the settlement agreement, it is unclear whether this clause would apply to the confidentiality clause portion. Moreover, understaffing is not necessarily an unlawful act in the workplace. In fact, Plaintiffs do not even allege that Defendants’ understaffing was unlawful. Rather, Plaintiffs allege that the understaffing caused unlawful conduct – i.e., the alleged failure to permit meal and rest periods. Thus, no exemption would permit Plaintiff Rodriguez to freely testify about Defendants’ understaffing – which, in part, allegedly caused the failure to permit meal and rest periods.

As Defendants note, “[a] putative class is not adequately served by a representative who is restricted—let alone prohibited—from offering testimony on key issues like understaffing.” (Supp. Opp. at p.6:8-9.) Accordingly, due to the limitations imposed on Plaintiff Rodriguez in the settlement agreement, the Court finds that Plaintiff Rodriguez is not an adequate class representative.

Plaintiff Padron has a pending individual claim against Defendants for wrongful termination. (Padron Decl. ¶ 8.) Padron claims that despite her individual lawsuit, she can “remain objective and still adequately represent the interests of the punitive class members.” (Padron Decl. ¶ 8.) Padron further claims that she “would not settle [her] individual case if it would require [her] to stop being a class representative in this class action.” (Padron Decl. ¶ 8.) The Court is somewhat skeptical of Plaintiff Padron’s claims.

With a separate ongoing individual lawsuit against Defendants, Plaintiff Padron has clear incentives that are contrary to the interests of the class. “There is a substantial risk that plaintiff will therefore have different priorities and litigation incentives than the class members. She could, for example, be tempted to accept an inadequate settlement offer on the class claims in exchange for a larger settlement on her personal injury claims or, alternatively, be motivated to proceed to trial when it may be in the best interest of the class to settle.” (Wilson v. Conair Corporation (E.D. Cal., June 3, 2016, No. CV11400894WBSSAB) 2016 WL 7742772, at *4.) Plaintiff Padron could be incentivized to settle the class claims for significantly less than would otherwise be warranted for an increase in her personal settlement. Though, it appears that Padron may have reached a settlement, (Joint Statement 5/5/25), Padron may be limited by the final settlement agreement in her ability to adequately represent the class. Accordingly, the Court cannot find that Padron is an adequate class representative until the final terms of any settlement between the parties in Padron’s individual case are finalized.

Based on the foregoing, Plaintiff Julie Ann Rodriguez’s motion for phase one of class certification is DENIED.

Plaintiff Jessica Padron’s motion for phase one of class certification is DEFERRED AND CONTINUED TO June 25, 2025 at 10:00 am.

The Parties are ordered to file a joint statement advising as to the status of Plaintiff Padron’s individual case by June 18, 2025 and if a settlement has been executed, attach a copy and brief whether any applicable confidentiality clause within the settlement may apply to the instant action.

[1] All of Defendants’ objections include an objection that the matter is a “[s]elf-serving declaration conflicting with prior admission (Thompson v. Williams (1989) 211 Cal.App.3d 566, 574.)” This is not a proper evidentiary objection. Thompson merely stands for the proposition that on a summary judgment motion, a party cannot create a triable issue of fact through contradictions in said party’s own testimony. (Thompson, supra, 211 Cal.App.3d at pp.573-574.) Defendants fail to cite any authority to show that this reasoning is applicable in a motion for class certification. Nor do Defendants cite any authority showing that the Thompson case may serve as a proper basis for an evidentiary objection.

[2] The Court notes that the record is unclear as to the facility at which Plaintiff Padron worked. Plaintiff Padron states in her declaration that she worked at the Montrose facility. However, Defendants claim in their memorandum that Plaintiff Padron worked at the Sparr Heights facility. The parties should clarify in future filing the facility at which Plaintiff Padron worked. For purposes of this motion, the Court will presume that Plaintiff Padron worked only at the Montrose facility.

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9