Judge: Glenda Sanders, Case: 2020-01176039, Date: 2022-11-17 Tentative Ruling
Plaintiff Amara O’Neill seeks class certification of the following classes:
· Class: All non-exempt employees employed by Robinson Pharma Inc. in California from January 29, 2017 to the date of certification.
· Subclass A: All Class Members employed during the time from January 29, 2017, through Class certification, who terminated their employment relationship with Defendant and did not receive all wages owed to them in accordance with Labor Code § 201-203 (Waiting Time Penalties Subclass);
· Subclass B: All Class Members employed during the time from January 29, 2017, through Class certification, who incurred reasonable business expenses in the discharge of their duties and were not reimbursed (Expense Reimbursement Subclass);
· Subclass C: All Class Members employed during the time from January 29, 2017, through Class certification, who did not receive accurate itemized wage statements in accordance with Labor Code§ 226 (Wage Statement Subclass);
· Subclass D: All Class Members employed during the time from January 29, 2017, through Class certification, who were not paid all wages, including all correct overtime wages, for time spent working for Defendant (Off the Clock Wages Subclass);
· Subclass E: All Class Members employed during the time from January 29, 26 2017, through Class certification, who whose payroll and time records were not maintained 27 completely and accurately (Failure to Maintain Records Subclass); and
· Subclass F: All Class Members employed during the time from January 29, 2 2017, through Class certification, who did not receive a meal period premium for 3 unprovided meal periods (Meal Period Subclass).
ROA 138, NOM.
Relevant Authority: “The 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. [Citations.] In turn, the community of interest requirement embodies 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.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 [internal quotations and citations omitted].) These elements are typically referred to as: (1) ascertainability; (2) numerosity; (3) commonality; (4) typicality; (5) adequacy; and (6) superiority. (See e.g. Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 681.)
Plaintiff bears the burden of proof on these elements. This must be established by admissible evidence; the parties may not rely on allegations in their complaint. (Soderstedt v. CBIZ Southern Calif., LLC (2011) 197 Cal.App.4th 133, 154-155 [where plaintiffs submitted only 3 declarations of proposed class members, in the absence of admissible evidence re size of class, moving party failed to meet burden to show numerosity]; Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 322-323 [trial court has duty to scrutinize declarations re class certification to ensure they are not the product of “coercion or deception”].)
The Merits: Defendant appears to concede that Plaintiff has met her burden of establishing all elements for class certification except for commonality, typicality, and adequacy. Defendant does not discuss or challenge any of the other elements for certification.
COMMONALITY AND SUPERIORITY
In analyzing the issue of commonality,
“[t]he ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ [Citations.] The answer hinges on ‘whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.’ [Citation.] A court must examine the allegations of the complaint and supporting declarations [citation] and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible. ‘As a general rule if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.’ ” (Brinker, supra, 53 Cal.4th at pp. 1021–1022, 139 Cal.Rptr.3d 315, 273 P.3d 513, fn. omitted.) Indeed, “at the class certification stage, as long as the plaintiff's posited theory of liability is amenable to resolution on a classwide basis, the court should certify the action for class treatment even if the plaintiff's theory is ultimately incorrect at its substantive level, because such an approach relieves the defendant of the jeopardy of serial class actions and, once the defendant demonstrates the posited theory is substantively flawed, the defendant ‘obtain[s] the preclusive benefits of such victories against an entire class and not just a named plaintiff.’ ” (Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278, 293–294, 171 Cal.Rptr.3d 504, italics omitted.)
(ABM Indus. Overtime Cases (2017) 19 Cal. App. 5th 277, 307–08.) Thus, the focus is on whether the Plaintiff’s theory of recovery is amenable to class treatment. Plaintiff has satisfied this requirement.
Defendant criticizes Plaintiff’s evidence and argues that it does not show a uniform or widespread policy or practice across all of its offices and departments. Defendant also argues that the evidence presented by Plaintiff is conclusory. However, Defendant presents no evidence, or even argument, explaining how its policies and practices were different depending on location or department. Defendant also presents no evidence contradicting any of Plaintiff’s evidence and has not objected to any of Plaintiff’s evidence. Defendant presents no evidence of the various departments or positions within its company, or any counter-declarations or written policies demonstrating any differences in its policies or the implementation of those policies based on department, manager or employment position. Defendant’s arguments are not persuasive.
Plaintiff’s evidence shows Defendant has uniform policies and practices relating to timekeeping, meal periods, off the clock work, and reimbursement for business expenses that affect all non-exempt employees.
In its Employee Handbook, Defendant has a written policy requiring each non-exempt employee to accurately record his or her start and end time for each shift and meal periods. If corrections or modifications are made “both employee and supervisor must verify for accuracy of the changes by initial[ing] the time card.” ROA 136, Favarote, Ex. B, Nguyen Depo., Ex. 2, Employee Handbook, p. 17 Appx. 078. Despite this policy, Defendant admits it did not follow this policy, and instead, had a uniform practice and procedure of reviewing and making hand edits to every single time card for every single pay period for all its non-exempt employees without advising them of the edits or having them acknowledge their time cards were accurate, and paying the non-exempt employees based on those hand edits. ROA 136, Favarote Decl., ¶5, Ex. B, Nguyen Depo., at pp. 43:20-46:20, 55:1-57:12, 60:3-61:15, 72:22-73:20, 79:14-78:7; ROA 136, Favarote Decl., Ex. D, Pham Depo., at p. 28:7-20.
Defendant argues that Plaintiff has not demonstrated there was any harm or time was deducted as a result of its uniform practices and procedures but that is an issue of proof of damages that does not defeat the common questions of liability.
Additionally, Defendant’s policy requires employees to take their breaks and meal periods at certain times. ROA 136, Favarote Decl., Ex. B, Nguyen Depo., at pp. 41:3-43:9, 74:18-78:22. Defendant’s timekeeping software has an auto-lunch function that automatically deducts 30 minutes for lunch when an employee does not clock out for a meal period within a certain time, and when the employee clocks back in early from lunch, the auto-lunch function automatically deducts the difference from the employee’s time worked to ensure that 30 minutes are not paid. ROA 136, Favarote Decl., Ex. D, Pham Depo., at pp. 34:13-35:4, 43:15-23, 44:3-21, 50:16-51:13; ROA 136, Ex. E. This auto-lunch feature happens regardless of whether the employee actually takes a meal break or is required to take a delayed or shortened meal break because of work. At no time has Defendant ever paid a premium for missed or delayed meal periods. ROA 136, Favarote Decl., Ex. D, Pham Depo., at p. 41:1-23.
Defendant’s practice of automatically recording a 30-minute meal break even if the meal break was not taken or shortened because of work, and Plaintiff’s evidence of missed, delayed and short meal periods, give rise to the rebuttable presumption of a meal period violation as set forth in Donohue v. AMN Servs., LLC (2021) 11 Cal. 5th 58, 78 [“If time records show noncompliant meal periods, then a rebuttable presumption of liability arises”].) Further, as the California Supreme Court explained “[I]t is the employer’s duty to maintain accurate time records; the law does not expect or require employees to keep their own time records to uncover potential meal period violations.” (Id. at 80-81.)
Defendant contends individualized issues predominate because its policy demonstrates it makes meal periods available. Defendant argues that meal breaks was dependent on the manager and department, but Defendant does not offer any evidence that this is actually the case. Defendant’s policy does not contradict the evidence of its practice and procedure of automatically deducting 30 minutes for lunch and not paying a premium regardless of whether the meal break was not actually taken, delayed or shortened. Nor is there any evidence that the employees waived their right to take any meal breaks.
Other courts have determined that automatically deducting 30 minutes for meal breaks regardless of whether the meal break was actually taken raises common legal and factual issues that may support class certification. (Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1294, 1304. See also,
ABM Indus. Overtime Cases, supra, 19 Cal. App. 5th at 309.)
As to the Waiting Time Penalties class, Plaintiff presents evidence of her resignation and final wage statement as well as seven other employees’ time cards and pay summaries to support her allegation that there is a policy of not paying terminated employees all their wages within 72 hours as required under Labor Code §§ 201-203. ROA 136, Favarote Decl., at ¶15 and Exs. H and I. Again, Defendant has not contradicted any of this evidence or identified any policies or practices to contradict Plaintiff’s evidence and the reasonable conclusions that can be drawn therefrom.
As for the Expense Reimbursement Class, Plaintiff presents evidence that Defendant never reimbursed any employees for use of their personal cell phones on work matters. In her declaration, Plaintiff states her supervisors and management employees would “routinely call and text hourly employees including [herself] on [their] personal cellular telephones for work related issues both during and after work hours.” ROA 136, Ex. J, O’Neill Decl., ¶4. While Plaintiff’s evidence of the use of personal cell phones by non-exempt employees is thin, Defendant has not opposed or objected to Plaintiff’s declaration nor has Defendant presented contrary evidence. Defendant has not shown that it has any policies about contacting employees on their personal cell phones or advising employees that they do not have to respond to managing or supervising employees on their cell phones or after hours. As such, Plaintiff’s evidence is sufficient to establish a uniform policy and practice of contacting employees on their personal cell phones and failing to reimburse them for a necessary business expense.
The Wage Statement Class and Failure to Maintain Records Class are derivative of the other claims. Since common issues of fact and law predominate the other issues, common issues of act and law are also found here.
Given the common questions of fact and law, and the number of putative class members, Plaintiff has met the superiority requirement.
TYPICALITY AND ADEQUACY
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.” (Martinez v. Joe's Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375 (internal quotes omitted).) Further, the class representative, though qualified counsel, must show he or she can adequately represent the class by being capable of “vigorously and tenaciously” protecting the interests of class members. (Simons v. Horowitz (1984) 151Cal.App.3d 834, 846.)
“The adequacy inquiry ... serves to uncover conflicts of interest between named parties and the class they seek to represent.” (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 851.) “Where there is a conflict that goes to the very subject matter of the litigation, it will defeat a party’s claim of class representative status. Thus, a finding of adequate representation will not be appropriate if the proposed class representative’s interests are antagonistic to the remainder of the class.” (Ibid. [internal quotes and citations omitted].)
Defendant contends that Plaintiff’s claims really center on her individual sexual harassment claims, and therefore, her claims are not typical. Defendant’s arguments are not persuasive.
Having individual claims is not unusual for a named class plaintiff. Plaintiff has presented evidence that she was subject to the same policies and practice as all other nonexempt employees. Defendant has not presented any evidence to show otherwise. Defendant presents no evidence that Plaintiff was not subject to its uniform policies and practices or that she was subject to any unique policies or practices. Defendant has not shown that Plaintiff’s sexual harassment claims are adverse or conflict with the class claims. Nor has Defendant shown that Plaintiff is unable to fairly represent the class interests.
Plaintiff has attested to understanding her obligations and responsibilities as class representative. ROA 136, Ex. J, O’Neill Decl., ¶¶8-9. Accordingly, there is sufficient evidence to satisfy the requirements for typicality and adequacy.
ASCERTAINABILITY AND NUMEROSITY
There is no dispute that Plaintiff has met ascertainability and numerosity. The putative classes can be determined through Defendant’s records and consist of approximately 1,750 putative Class Members, of which 1,341 were employed within one year of filing the lawsuit for purposes of Labor Code § 226 and 930 were terminated during the Class Period. ROA 136, Favarote Decl., ¶9.
For the reasons set forth above, the Court GRANTS the motion for certification.
The status conference is continued to February 24, 2023 at 9:00 a.m. and the parties are Ordered to file a joint status report by not later than February 17, 2023.
Plaintiff is ordered to give notice.