Judge: Kenneth J. Medel, Case: 37-2021-00050379-CU-OE-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2021-00050379-CU-OE-CTL CALMA VS SCOOTER BREW INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion to Certify Class, 03/13/2024

Plaintiff Sean S. Calma's Motion for Class Certification is GRANTED.

Preliminary Matters Plaintiff filed a reply brief that is five pages over the length allowed under the rules. (Cal Ct. R. 3.1113(d) [reply brief may not exceed 10 pages].) The Court considered Plaintiff's reply but may not consider such an oversized filing in the future.

The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) As this was the case here, the Court has considered the reply declaration of Kristy R. Connolly. (ROA 392.) Defendant's unopposed request for judicial notice is GRANTED. Notice will be taken to the extent permitted.

Defendant's evidentiary objections to the declaration of Raul Islas are SUSTAINED as to objection number 5 and are otherwise OVERRULED. (ROA 389.) Plaintiff's evidentiary objections to the declaration of Joseph Arruda are SUSTAINED as to objections numbers 5-7 and are otherwise OVERRULED. (ROA 391.) Although federal law may be cited for guidance on class certification issues, the Court does not have access to Lexis.

Discussion Code of Civil Procedure § 382 authorizes class actions 'when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .' '[T]he focus in a certification dispute is on what type of questions-common or individual-are likely to arise in the action, rather than on the merits of the case.' (Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 973.) To obtain certification, a party must establish the existence of both an ascertainable class and a well-defined community of interest among class members. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35 CASE NUMBER: CASE TITLE:  CALMA VS SCOOTER BREW INC [E-FILE]  37-2021-00050379-CU-OE-CTL Ascertainability A class is ascertainable when the following requirements are satisfied: (a) potential class members are clearly identifiable and the size reasonably controlled; and (b) the members can be located and notified of the action through a reasonable expenditure of time and money. (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1274-75.) 'In determining whether a class is ascertainable, the trial court examines the class definition, the size of the class and the means of identifying class members.' (Bomersheim v. Los Angeles Gay & Lesbian Center (2010) 184 Cal.App.4th 1471, 1480.) The purpose of the ascertainability requirement is 'to give notice to putative class members as to whom the judgment in the action will be res judicata.' (Id.) Class Definition The class definition must be specific to enable potential class members and for the Court to readily determine the parameters of the Class. (See, e.g., Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 617.) Plaintiff proposes the following class definition and subclasses: Class: All current and former non-exempt employees employed by Scooter Brew, Inc. at any time from June 6, 2017 through October 24, 2023 ('Class Period').

- Expense Reimbursement Subclass: All Class Members, except Defendant's Bar Manager, Jason Carbone, who downloaded the BAND App on their personal cell phones during the Class Period.

- Unpaid Wages Subclass: All Class Members who downloaded the BAND App on their personal cell phones during the Class Period.

- Meal Period Premium Wage Subclass: All Class Members who worked a shift of five (5) hours or longer during the Class Period.

- Wage Statement Subclass: All Class Members who received a wage statement from Defendant at any time from June 6, 2020 through October 24, 2023.

- Waiting Time Subclass: All Class Members whose employment with Defendant ended at any time from June 6, 2018 through October 24, 2023.

Size The class must meet a 'numerosity' requirement. The class is sufficiently large that 'the maintenance of a class action would be advantageous to the judicial process and to the litigants.' (Brinker v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) Plaintiff represents there are 57 class members. No set number is required as a matter of law for the maintenance of a class action. (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934.) Although Defendant contends 37 of these putative class members have signed releases during the class period, a determination on the merits of the releases cannot be used to evaluate numerosity and is better addressed at a dispositive motion. (See Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1223-1224.) The Court determines that it would be appropriate to adjudicate on behalf of 57 persons rather than require individual actions.

Means of Identification Whether class members are easily identifiable turns on whether a plaintiff can establish 'the existence of an ascertainable class.' It does not require specific identification of individual members. (Reyes v. Board of Supervisors (1987) 196 Cal.App.3d, 1264, 1275.) A means of identification is required, such as using Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35 CASE NUMBER: CASE TITLE:  CALMA VS SCOOTER BREW INC [E-FILE]  37-2021-00050379-CU-OE-CTL payroll records. (See, e.g., Collins v. Rocha (1972) 7 Cal.3d 232, 237.) Plaintiff indicates members can be identified using the contact information provided by Defendant, which is readily ascertainable from Defendant's business records.

Well-Defined Community of Interest '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.) The Court must also determine that a class action proceeding is superior to alternate means for a fair and efficient adjudication. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) The legal sufficiency of the causes of action in the operative complaint cannot be inquired into at the certification stage, but should be reserved for a motion for summary judgment or trial. (Linder, supra, 23 Cal.4th at 43.) Instead, the focus is whether the theory of recovery is amenable to class treatment.

(Ghazaryan v. Diva Limousine, Ltd. (2009) 169 Cal.App.4th 1524, 1531, citing SavOn Drug Stores, Inc.

v. Superior Court (2004) 34 Cal.4th 319, 327.) Whether Common Questions of Law or Fact Predominate A community of interest exists among the class members when the common questions are sufficiently important to permit adjudication in a class action rather than in a multiplicity of separate suits. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 711.) Plaintiff argues the common questions of law and fact include: (1) whether Defendant required Class Members to use their personal cell phones for work; (2) whether Defendant was required to reimburse Class Members for expenses incurred in connection with their personal cell phones; (2) whether Class Members were required to check the BAND app outside of working hours; (3) whether Defendant's compensation scheme failed to pay Class Members wages for all time worked; (4) whether Defendant maintained accurate timekeeping records showing that start and end times of meal periods; (5) whether Defendant paid meal period premiums for meal periods that were not taken before the end of the fifth hour worked; (6) whether Defendant issued wage statements to Class Members that fail to identify the address of the legal entity that is the employer; (7) whether Defendant failed to pay all wages due upon separation of employment; and (8) whether Defendant's practices constitute unfair or unlawful business practices in violation of Business and Professions Code Section 17200.

Plaintiff contends these common questions and law and fact are based on Defendant's uniform policies and practices, as well as Defendant's timekeeping and record keeping systems.

1) Claims for Failure to Reimburse Expenses Labor Code section 2802 provides that employees have the right to reimbursement for expenses directly incurred in the course of their employment. 'To show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.' (Cochran v. Schwan's Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1145.) The seminal case for Labor Code wage and hour class certification, Brinker, held that '[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.' (Brinker Restaurant Corp.

v. Superior Court (2012) 53 Cal.4th 1004, 1033.) Plaintiff provides evidence of Defendant's common practice requiring class members to download and use the BAND mobile application ('BAND app') on their personal cell phones and turn on push notifications. (ROA 378, Calma Dec., ¶¶ 6-9; ROA 383, Connolly Dec., Ex. A, pp. 65: 13-25, 73: 12-16 Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35 CASE NUMBER: CASE TITLE:  CALMA VS SCOOTER BREW INC [E-FILE]  37-2021-00050379-CU-OE-CTL and Exhibits 13 and 14 to Ex. A.) Plaintiff also provides evidence of Defendant's common practice of requiring class members to review all postings on the BAND app and Defendant's monitoring of the BAND app to confirm posts have been viewed. (Calma Dec., ¶¶ 8-9; Connolly Dec., Ex. A, pp. 71: 7-19, 98: 1-8 and Exhibits 13 and 14 to Ex. A.) Plaintiff further provides evidence of a uniform policy prohibiting class members from using their personal cell phones while working. (Calma Dec., ¶ 12; Connolly Dec., Ex. A, pp. 45: 16-46: 7 and Exhibit 7 to Ex. A.) Plaintiff has thus provided evidence he and the class members were required to check the BAND app outside of working hours. Moreover, Plaintiff provides evidence he was not reimbursed for use of his cell phone, as well as of a common practice that Defendant does not reimburse class members for the use of their cell phones (with the exception of bar manager Jason Carbone who is excluded from the expense reimbursement subclass).

(Calma Dec., ¶¶ 10, 12; Connolly Dec., Ex. A, 76: 7-15.) As a result of these uniform policies and common practices, Plaintiff's reimbursement claims against Defendant are susceptible to common proof.

The only issue of fact that may vary among the class members is the precise amount of damages or restitution to which an individual employee may be entitled, which is not a bar to class certification. (See Brinker, supra, 53 Cal.4th at 1022.) 2) Claims for Unpaid Wages Based on similar theories and arguments as the reimbursement claim, Plaintiff seeks unpaid wages claims on the grounds Defendant has not compensated the class for unpaid 'off the clock' work incurred in reviewing the BAND app postings outside of the class members' working hours to comply with Defendant's policy prohibiting the use of their cell phones at work. For the reasons set forth above, these claims are susceptible to common proof.

Defendant cites Brinker for the proposition that 'off the clock work' is not suitable for class certification.

However, what distinguishes the allegations here from Brinker are the common practices and uniform policies regarding the BAND app set forth above. (See Brinker, supra, 53 Cal.4th at 1051 ['off the clock' claim lacked a common policy or common method of proof, and plaintiff failed to present 'substantial evidence of a systematic company policy to pressure or require employees to work off-the-clock'].) To the extent Defendant argues the time spent reviewing posts on the BAND app is de minimis, those are contentions on the merits to be addressed through a dispositive motion.

3) Claims for Late Meal Periods or Late Meal Period Premiums Plaintiff contends Defendant failed to maintain records for meal periods and failed to pay premiums for late meal periods. (Lab. Code, § 510, 226.7; Cal. Code Regs., tit. 8, §11050, subds. 7(A)(3), 11(A).) Time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. (Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 61.) The California Supreme Court in Donohue cited Justice Werdegar's concurrence in Brinker previously articulating this presumption. ' 'Employers covered by Industrial Welfare Commission (IWC) wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) have an obligation both to relieve their employees for at least one meal period for shifts over five hours ... and to record having done so .... If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.' ' (Donohue, supra, 11 Cal.5th at 74, citing Brinker, supra, 53 Cal.4th at 1052-1053 (conc. opn. of Werdegar, J.).) Contrary to Defendant's contentions that Donohue is inapplicable as a summary judgment case, the presumption 'goes to the question of liability' and also 'applies at the class certification stage.' (Donohue, supra, 11 Cal.5th at 76.) The presumption applies to missed, shortened, or delayed meal periods. (Id.) Additionally, where an employer has an apparent practice of never paying the premium wage for meal break violations, this is capable of common proof as required for class certification. (See Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1159; see also ABM Industries Overtime Cases (2017) 19 Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35 CASE NUMBER: CASE TITLE:  CALMA VS SCOOTER BREW INC [E-FILE]  37-2021-00050379-CU-OE-CTL Cal.App.5th 277, 306 and 310 [employer's 'apparent uniform practice of never providing premium pay to its employees ... [for] missed meal breaks, is susceptible to classwide treatment'].) Plaintiff provides evidence that the time and pay records produced in discovery do not indicate the start and end times for meal periods, and Defendant does not review the timekeeping records to determine the time a meal period was taken. (Connolly Dec., Ex. A, at pp: 80: 11-25, 103: 8-9, Ex. D., at pp. 3-4, Ex. E.) These records raise a rebuttable presumption of late meal period violations. Plaintiff also provides evidence of Defendant's apparent policy not to pay premiums for late meal periods. (Conolly Dec., Ex. A, at p. 81: 1-3.) In opposition, Defendant presents evidence of its meal period policy, efforts to advise and remind class members to take meals, and evidence it has paid meal penalties (including copies of paystubs for Plaintiff showing payments for meal period premiums) when employees 'missed a meal period' or 'clocked back in too soon.' (ROA 385, Arruda Dec., ¶ 10.) However, Defendant did not present any evidence to show that Defendant ever paid premiums for late meal periods. Consequently, Plaintiff has shown common issues predominate.

Additionally, although Defendant claims individual inquiries would be required to determine whether certain employees voluntarily missed or waived meal periods, that is not required at least as to Plaintiff's restitution theory. (Safeway, supra, 238 Cal.App.4th at 1162.) 4) Claims for Inaccurate Wage Statements Plaintiff seeks inaccurate wage statements claims based on the alleged wage and hour violations set forth above and the inaccurate address for the employer on the wage statements. (Connolly Dec., ¶ 9, Ex. A, at pp. 96: 10-97: 10, Ex. F.) Where waiting time penalties are based on claims for overtime and/or meal and rest claims that are properly certified, certification on the waiting time claims may also be appropriate. (See Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1156; Bradley v. Networkers International LLC (2012) 211 Cal.App.4th 1129, 1136.) As the derivative claims here depend on liability findings for the underlying violations, and given that the alleged violations include not only claims for non-provision of late meal periods but also claims for unpaid wages and failure to reimburse expenses, common questions predominate. Although Defendant contends class members were not mislead by the address on the wage statements given their knowledge of the location where they work, such a common defense does not require individualized issues.

5) Derivative Waiting Time Penalties and Unfair Competition Law Claims Because Plaintiff's derivative claims are also based on the alleged wage and hour violations set forth above, common questions predominate as to these claims. (See Bradley, supra, 211 Cal.App.4th at 1136.) 6) Other Claims in Plaintiff's Complaint In opposition, Defendant argues this motion does not encompass the ten causes alleged in the SAC.

Plaintiff's SAC also alleged claims for Failure to Permit Rest Breaks and Enforcement of Labor Code § 2698 et seq. ('PAGA'). (ROA 214.) However, Plaintiff does not address these claims in his moving or reply papers. Plaintiff's claims based on meal and rest period violations only concerns premiums for late meal periods. Although Plaintiff's motion also addresses derivative claims, the only derivative claims identified are those based on the waiting time penalties and the unfair competition law. It appears that Plaintiff concedes the rest break and PAGA claims are not certifiable.

Typicality of the Class Representatives When determining whether the class representatives' claims are typical of the class, courts inquire 'whether other members have the same or similar injury, whether the action is based on conduct which Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35 CASE NUMBER: CASE TITLE:  CALMA VS SCOOTER BREW INC [E-FILE]  37-2021-00050379-CU-OE-CTL is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.' (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502; Martinez v. Joe's Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.) The class representatives need not have interests that are identical to those of the class to satisfy the typicality requirement; rather, the class representatives need to be similarly situated to the class members, such that they will focus on the common issues. (Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99; B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341, 1347.) A plaintiff's claim is 'typical' if it arises from the same event, practice or course of conduct that gives rise to the claims of the other class members and if his or her claims are based on the same legal theory.

(BWI Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341, 1347.) It is not necessary that the claims of the class representatives be identical to those of the class.

Here, the claims at issue would be typical. The law applicable to those facts is identical for the named Plaintiff and the putative class members.

Defendant argues Plaintiff's claims are not typical given he seeks to represent members who have signed settlement and release agreements. However, Defendant never produced these release agreements in discovery despite Plaintiff's formal demand for production served prior to the instant motion, and that demand is subject to a pending motion to compel. (See ROA 368; ROA 392, ¶¶ 3-9.) Additionally, Defendant only provides a single 'sample' release that is not fully executed. (Arruda Decl., ¶ 19 and Ex. J.) Nor does Defendant properly authenticate the 'sample' release, provide copies of all the releases, provide any information on the identity of the putative class members who purportedly signed them, or explain why these releases are valid. Under these circumstances, determining this issue at the certification stage based on undisclosed evidence would deprive Plaintiff of due process and constitute reversible error. (See Hendershot, supra, 228 Cal.App.4th at 1226 [noting '[i]t is an abuse of discretion for a trial court to determine class certification questions before the parties have an opportunity to conduct discovery and present evidence on certification issues,' and the production of release agreements until the eve of the due date for the motion for class certification 'did not give plaintiffs an adequate opportunity to conduct discovery on these issues or brief them'].) Additionally, the validity of Defendant's affirmative defense based on these releases can be addressed in a dispositive motion following certification. (See Chindarah v. Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796, 798-799.) Fair and Adequate Representation by Class Representatives and Counsel The question of adequacy of representation depends on whether (1) the plaintiffs' attorney is qualified to conduct the proposed litigation and (2) the named plaintiffs' interests are not antagonistic to the interests of the class. (McGhee v. Bank of Am. (1976) 60 Cal.App.3d 442, 450.) Prospective representatives are to submit sworn declarations stating that he or she desires to represent the class and understands the fiduciary obligations of serving as class representative. (Jones v. Farmers Ins. Exch. (2013) 221 Cal.App.4th 986, 998; Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 579-580.) Plaintiff has complied with this requirement. (ROA 378, Calma Dec., ¶¶ 17-20.) For similar reasons set forth above, Defendant's contentions Plaintiff is not an adequate representative of a class with members who have purportedly signed releases cannot be addressed under these circumstances but may be considered on a dispositive motion on the affirmative defenses.

(Hendershot, supra, 228 Cal.App.4th at 1226.) Nor does the fact one employee of Defendant has filed a separate action that in part alleges wage and hour claims (despite filing a declaration supporting this motion and representing he does not have time to file his own case) demonstrate Plaintiff is an inadequate class representative. While 'widespread antagonism to the class suit' might call the adequacy of representation into question (Richmond v. Dart Indus., Inc. (1981) 29 Cal.3d 462, 470), a single action does not evidence this. Individuals antagonistic to the representation or maintain signed releases could certainly opt out if he or she does not wish to be bound by the result of this action.

A declaration on the qualifications and experience of counsel is provided. (Connolly Dec., ¶¶ 14-30.) Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35 CASE NUMBER: CASE TITLE:  CALMA VS SCOOTER BREW INC [E-FILE]  37-2021-00050379-CU-OE-CTL Defendant argues Plaintiff's counsel is inadequate given the unsuccessful efforts to allege claims against the DCSS Defendants, culminating in judgment in the DCSS Defendants' favor after the Court sustained those Defendants' demurrer to the SAC without leave to amend. (See ROA 296, 304.) However, as set forth in the Court's ruling denying the DCSS Defendants' motions for sanctions, the fact that the Court ultimately sustained the DCSS Defendants' demurrer to the SAC was not, in itself, enough to warrant the imposition of sanctions for a frivolous claim. (ROA 354.) Plaintiff's counsel is qualified, and the Court does not find that litigation on these matters is grounds to deny certification.

Superiority Superiority is defined as 'manifest in the determination that a class action ... would produce 'substantial benefits' to the litigants and the judicial system.' (Schneider v. Vennard (1986) 183 Cal.App.3d 1340, 1347.) In deciding whether a class action would be superior to numerous individual suits, courts generally consider several factors: (1) the interest of each individual class member in controlling his or her own case personally; (2) the difficulties, if any, that may be encountered in managing a class action; (3) the nature and extent of any duplicative litigation already in progress by individual class members; and (4) the desirability of consolidating all claims in a single litigation before one court. (Bascuro v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 121.) Class treatment appears superior. The Court can address the legal and factual issues that exist in each of Plaintiff's claims. Defendant does not raise any challenges based on superiority.

In making this ruling, the Court is not necessarily adopting the trial plan submitted by Plaintiff. The Court only considered the plan in terms of proposed manageability of the action and to determine whether the legal and factual issues are sufficiently common and subject to common proof such that class determination is a superior method to proceed in this litigation.

Calendar No.: Event ID:  TENTATIVE RULINGS

3044367  35