Judge: William D. Claster, Case: 19-01092692, Date: 2023-07-28 Tentative Ruling
1. Plaintiffs Edith Rodriguez, Rodolfo Rodriguez, Jonathan
Uribe, David Hormaechea, and Sebastian Hormaechea's Notice of Motion and
Motion for Class Certification ROA 312
2. Status Conference
Before the Court is Plaintiffs Edith Rodriguez, Rodolfo Rodriguez, Jonathan Uribe, David Hormaechea and Sebastian Hormaechea’s motion for class certification. For the reasons set forth below, the Court rules as follows:
PRELIMINARY MATTERS
I. Plaintiffs’ Compendium of Testimony
With their moving papers, Plaintiffs submitted a document titled “Compendium of Testimony in Support of Motion for Class Certification.” (ROA 304.) From its title, the Court expected this document to lodge class member declarations in support of the motion. But the Compendium is something else, more akin to a separate statement of undisputed material facts in support of a summary judgment motion. It consists of two columns. On the left is a consecutively numbered list of 182 facts, and on the right is the evidence supporting each fact.
For example, fact 147 is “Defendants’ employees often were forced to take their meal break after the fifth hour of work.” On the right-hand side, the Compendium provides the following citation: “Henriquez Decl. ¶ 6; Garcia Decl. ¶ 6; Joya Decl. ¶ 6; Lopez Decl. ¶ 6; Castillo Decl. ¶ 6; Gomez Decl. ¶ 6; James Decl. ¶ 6; Gonzalez Decl. ¶ 6; Quintana Decl. ¶ 6; Trujillo Decl. ¶ 6; Barajas Decl. ¶ 6; Goodwin Decl. ¶ 6; Acosta Decl. ¶ 6; Macias Decl. ¶ 7; Nunez Decl. ¶ 6; Maldonado Decl. ¶ 6; D. Hormaechea Decl. ¶ 5; S. Hormaechea Decl. ¶ 5; Uribe Decl. ¶ 5; R. Rodriguez Decl. ¶ 5; E. Rodriguez Decl. ¶ 5.”
In Plaintiffs’ memorandum of points and authorities, rather than citing to the evidence itself to substantiate their factual claims, they cite the Compendium. For example, at page 11 of the motion: “However, Plaintiff and class members were often prevented from taking meal breaks, nor took meal breaks, while working for Defendants and often were forced to take their meal breaks after the fifth hour of work. [CE 147, 150-51].” Had Plaintiffs cited to the evidence supporting this factual claim, they would have had to cite twenty-one declarations in double-spaced type, which could easily take four to five lines. By citing to the Compendium, they need cite only a few words. This problem recurs throughout the memorandum. It appears to the Court that Plaintiffs have used the Compendium to file briefing well in excess of page limits.
Defendants ask the Court to strike the Compendium. The Court will not do so, but only because it appears that Defendants have not been prejudiced. Defendants were already given additional pages for their opposition, which gave them more room to respond to Plaintiffs’ arguments. The Court otherwise agrees with Defendants that the Rules of Court do not permit a compendium that functions as a separate statement used to avoid page limits. (A compendium that simply collects declarations in a single filing would be another matter.)
II. Timing of Defendants’ Opposition
Plaintiffs argue Defendants’ opposition is untimely and should be disregarded. The Court’s minute order of May 26, 2023 specifically set July 7, 2023 as the opposition deadline. The opposition was filed that date. It is timely.
III. Evidentiary Objections
Plaintiffs have filed objections to Defendants’ evidence. The Court rules as follows: 1, 5, 6: Sustained. 2,4: Overruled. 3: Sustained on authentication/foundation grounds insofar as the declarant testifies Plaintiffs actually signed the documents. Otherwise overruled.
Defendants have also filed an evidentiary objection. The objection is sustained on the grounds that Plaintiffs cannot introduce new evidence on reply.
IV. Request for Judicial Notice
Plaintiffs’ request for judicial notice is granted.
DISCUSSION
I. Factual Background
A. The Parties
Defendants are interrelated auto refurbishing companies owned by members of the Miller family. Tom Miller owns Dynamic, his wife Eileen Miller owns Expert, their daughter Tiffany Miller owns Prestige, and their son Corey Miller owns Automotive. (Zingg Depo. pp. 22, 44-45.) They provide products and services to approximately 50-55 auto dealerships, a body shop, and three collision centers in California. (Allen Depo. pp. 41-42.)
During the proposed class period, Expert employed about 900 nonexempt employees, Automotive employed about 800 nonexempt employees, and Prestige employed about 250-300 nonexempt employees. (Allen Depo. p. 51.) Expert, Prestige, and Automotive did not have any independent contractors during the proposed class period. (Ibid.) Dynamic has no nonexempt employees. (Allen Depo. p. 45.) However, Dynamic had about 80 independent contractors during the class period. (Allen Depo. p. 53.)
As for Plaintiffs, Edith Rodriguez worked for Dynamic as a driver at Huntington Beach Chrysler for several weeks in early 2019. (E. Rodriguez Decl. ¶ 1.) David Hormaechea worked for Expert as a detailer, porter, and driver at Kearney Penske for several months in 2020. (D. Hormaechea Decl. ¶ 1.) Sebastian Hormaechea worked for Expert as a detailer, porter, and driver at Kearney Penske for several months in 2020. (S. Hormaechea Decl. ¶ 1.) Jonathan Uribe worked for Expert as a car washer, detailer, and assistant manager at several dealerships in Ontario and Montclair from 2017 to 2019. (Uribe Decl. ¶ 1.) The Court’s file contains no supporting declaration from Rodolfo Rodriguez.
B. Defendants’ Corporate Structure
As noted above, all Defendants are owned by members of the Miller family. During the class period, they shared the same general manager (Allen Depo. at pp. 215, 217), business manager (Zingg Depo. at pp. 158-159), human resources manager (Zingg Depo. at p. 156), and operations manager (Allen depo. at p. 131). Dynamic maintains personnel files for all Defendants. Expert, Automotive, and Prestige do not maintain their own personnel files. (Zingg Depo. at pp. 140, 142-143.) Martin Allen, the payroll manager for Dynamic, processes payroll for all Defendants. (Zingg Depo. at pp. 47-48.)
Dynamic contracts with auto dealerships and other companies to provide refurbishment services. In turn, it subcontracts with Expert, Automotive and Prestige to provide labor. Expert, Automotive and Prestige only provide labor under Dynamic’s contracts. (Zingg Depo. at pp. 19, 42, 166.) Dynamic subcontracts with Expert, Automotive, and Prestige for identical services. (Zingg Depo. at p. 92.) When Expert, Automotive and Prestige post job openings, they do so under the Dynamic name for recognition purposes. (Zingg Depo. at pp. 81-82.) Employees of Expert, Automotive and Prestige wear Dynamic-branded shirts that are purchased by Dynamic and stored in Dynamic’s office. (Zingg Depo. at pp. 82-83, 106, 108.)
II. Bankruptcy Issues
The case is stayed as to Automotive and Prestige, which are in bankruptcy. The motion is therefore denied without prejudice as to these defendants. Plaintiffs are free to seek certification of classes against them when they exit bankruptcy.
But Automotive and Prestige’s direct employees remain part of the class even if a class cannot be certified against Automotive and Prestige. As discussed in the ruling on the effect of the bankruptcy (ROA 585), Plaintiffs contend all four defendants operate as joint employers in an integrated enterprise. On Plaintiffs’ theory of the case, Dynamic and Expert are liable to the direct employees of Automotive and Prestige, so the bankrupt companies’ employees may be part of the class.
III. Class Certification Analysis
A plaintiff seeking class certification is required to “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. 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 Corporation v. Superior Court (2012) 53 Cal.4th 1004, 1021 [internal quotes and citations omitted].) These elements are typically referred to as (1) ascertainability; (2) numerosity; (3) commonality; (4) typicality; (5) adequacy; and (6) superiority.
A. Ascertainability
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 definition must be sufficient to both “put[] members of the class on notice that their rights may be adjudicated in the proceeding” and “supply[] a concrete basis for determining who will and will not be bound by (or benefit from) any judgment.” (Ibid.)
From the Court’s review of the proposed class definition, it is ascertainable as written, as are all proposed subclasses. In any event, Defendants do not contest ascertainability.
B. Numerosity
Defendants do not contest numerosity. As noted above, the overall class has about 2,100 members, which is more than enough to justify class treatment.
C. Commonality
Commonality focuses on 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.” (Collins v. Rocha (1972) 7 Cal.3d 232, 238.) 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.” (Sav-On Drugs, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327 [emphasis added].) That is, the commonality inquiry focuses on the plaintiff’s theory of the case, not the defendant’s expected defenses.
1. Joint Employer/Single Enterprise
As an issue common to all claims, it appears that whether Defendants are all joint employers of one another’s employees/joint hirers of contractors, or whether Defendants operate as a single integrated enterprise, can be decided on a common basis. Evidence relevant to unified control, etc. is summarized above. Nothing appears to depend on an employee-by-employee determination. To the extent one Defendant might be different from another on this score, it appears the answer would be the same for all employees of that Defendant, not employee-by-employee.
2. Meal Breaks
a. Illegal Policies: 2016 and 2019 Handbooks
Plaintiffs claim Defendants’ meal break policies—both the 2016 and 2019 versions—are illegal as written, and that because the policies are illegal as written, noncompliant breaks are presumed illegal without the need for individualized proof. Whether the written policy complies with the law is a common question. “The theory of liability—that [a defendant] has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033.) “It is far better from a fairness perspective to determine class certification independent of threshold questions disposing of the merits, and thus permit defendants who prevail on those merits, equally with those who lose on the merits, to obtain the preclusive benefits of such victories against an entire class and not just a named plaintiff.” (Id., at p. 1034.)
Defendants respond that their policy was to give hour-long breaks, which are longer than required by law. This argument is nonresponsive to Plaintiffs’ contention that the policies do not provide for timely breaks, which violates the law. Indeed, David Hormaechea’s sample timecard (Def.’s Notice of Lodging, Ex. E) shows numerous hour-long breaks, but in many cases taken after the fifth hour.
Defendants also respond that the written policy isn’t what’s relevant; instead, the question is what was communicated to employees. Their authority is inapposite. In Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, the plaintiffs claimed they were required to buy Wet Seal clothing to wear at work and were not reimbursed for the same. Certification of this claim was improper because the written policies expressly stated employees weren’t required to wear Wet Seal clothing, meaning any such policy had to be conveyed orally on a manager-by-manager basis, which devolved into a series of individual inquiries. (Id., at pp. 1364-1365.) Here, Plaintiffs contend the meal break policies as written are illegal, which can be decided on a common basis.
In Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, the Court of Appeal explained that while Pacific Bell had uniform written policies, the trial court was nonetheless within its discretion to deny certification when the evidence showed (1) that supervisors conveyed those policies to employees orally, each with their own differing interpretations of the policies and (2) even in the written policies, there was a “confusing overlay of policy manuals containing different combinations of rules that were applicable to the various job classifications at different times.” (Id., at p. 1062.)
In Koval, there was record evidence that policies were communicated orally by managers. No such evidence exists here. Defendants point to Plaintiffs’ testimony that they learned about policies from “personal experience,” but personal experience could include reading a handbook. Furthermore, at least as to employees of Automotive and Expert, Defendants’ payroll manager Martin Allen testifies that those employees are given copies of the handbook. (Allen Depo., at pp. 61-64.) And unlike Koval, there is no concern with multiple overlapping policy documents. Only one handbook was in effect at a time across all four companies. (Zingg Depo. at pp. 132-133.) There were no company policies that conflicted with those in the handbook. (Allen Depo. at p. 66.)
In Cortez v. Best Buy Stores, L.P. (C.D.Cal. 2012) 2012 WL 255345, Best Buy maintained a single nationwide employee handbook. The plaintiff argued Best Buy had a standardized nationwide policy of failing to inform employees of their meal break rights. The court disagreed. It explained the handbook provided that employees were not guaranteed breaks “except as required by state law,” and it contained an explicit guarantee of meal breaks for California employees. As a result, if California employees were not informed of their right to a meal break, it was the result of managers telling them information directly contrary to the handbook. Absent a company-written script for managers, this would devolve into individual inquiries. (Id., at *9.) Here, again, Plaintiffs’ arguments do not depend on what managers told them.
Whether illegal policies resulted in meal break violations is a predominant common question.
b. Practice-Based Violations
As noted above, Plaintiffs contend the meal break policies are illegal as written going back to the 2016 manual. But the class goes back to August 2015. Whatever handbook may have been in effect in 2015 isn’t in the record. As a result, violations would have to be proven by practice rather than by policy.
None of the Plaintiffs worked prior to 2016, but several declarants did. They all testify that managers frequently failed to permit timely breaks when business was busy. (Maldonado Decl. ¶ 6; Castillo Decl. ¶ 6; Gomez Decl. ¶ 6; Gonzalez Decl. ¶ 6; James Decl. ¶ 6.) This evidence tends to indicate Defendants had a common practice, implemented by managers, of failing to permit meal breaks due to the press of business.
Usually, an employer would respond to this showing by offering its own declarations from employees saying they always took required breaks, that any late or missed breaks were a matter of their own choice, etc. But Defendants offer no such declarations here. They simply argue the question must be decided on a manager-by-manager, shift-by-shift basis. On this record, however, all the Court can say is there exists unrebutted evidence that managers across California failed to permit breaks when work was busy, which appears to be common practice or informal policy. Either this practice is illegal or it isn’t, and it can be decided on a common basis.
The same is true of violations from 2016 and onward to the extent that they are based on practice rather than policy. Plaintiffs’ declarants uniformly testify that managers failed to permit timely breaks when work was busy. The only evidence that Defendants offer to counter this is two time sheets: Plaintiff David Hormaechea’s and declarant Douglas Goodwin’s. (Def.’s Notice of Lodging, Exs. E-F.) Hormaechea’s time sheets show hour-long meal breaks, but they are rife with late breaks. Goodwin, on the other hand, appears to have mostly compliant meal breaks, with none missed and only two late. But all Defendants have done is call into question the testimony of a single witness out of 20+. Again, on this record, there appears to be a common practice of failing to permit timely breaks when work is busy, and the Court believes this practice’s legality can be decided on a common basis.
3. Rest Breaks
For the time when the 2016 handbook was in effect, Plaintiffs contend the rest break policy was illegal as written, in that it expressly prohibited off-premises breaks. (Stahle Decl., Ex. D, at § 4.4.) Per Brinker, this question is eminently suited for class treatment.
Plaintiffs do not contend the remaining portions of the class period involved rest break policies that were illegal as written. But as with meal breaks, there is uniform, unrebutted testimony that managers regularly failed to provide timely rest breaks or denied rest breaks outright when work was busy. Again, on this record, it appears Defendants have a common company-wide practice or informal practice that either is or isn’t illegal, with this question capable of resolution on a classwide basis.
4. Off-the-Clock Work
Plaintiffs offer two theories of off-the-clock work.
a. Handbook Reading Time
As noted above, employees were given the employee handbook during the application process. They were given the handbook before they became employees—about 10-15 minutes would pass while the hiring manager decided whether to have them begin work. They were not paid for this 10-15 minute period. (Allen Depo. at pp. 65-66.) Employees were, of course, expected to comply with the policies in the handbook. (Zingg Depo. at pp. 192-193.) Plaintiffs reason that because employees were expected to comply with the handbook, and because they were not paid for the 10-15 minutes between receipt of the handbook and hiring, Defendants are liable for off-the-clock work.
But the handbook issue isn’t universal to the class. Only employees of Automotive and Expert received the handbook during onboarding. (Allen Depo. at pp. 61-64.) Employees of Dynamic and Prestige didn’t. And the handbook was inapplicable to those classified as independent contractors. (Zingg Depo. at p. 79.) This theory of recovery thus depends on individualized inquiry about which entity formally employed the class member, or if the class member was a contractor.
More importantly, Plaintiffs put on no evidence that anyone used the 10–15-minute interval to read the employee handbook. Assuming for the sake of argument that pre-hire time spent reading the handbook is compensable, commonality requires classwide proof that class members read the handbook during this time. Neither Plaintiffs nor their declarants testify to this. It therefore appears proof would depend on having every single class member testify about whether he or she read the handbook during that short window before hiring. Plaintiffs propose the use of a survey, but their expert Laura Steiner doesn’t propose to include questions about reading the handbook in her survey. (Steiner Decl. ¶ 8 [listing areas of questioning].) And, because Steiner proposes to take a random sample of the entire class (id. ¶¶ 9-11), her sample will necessarily include contractors and employees of Dynamic and Prestige to whom this theory doesn’t apply in the first place.
On this record, individual questions predominate regarding off the clock reading time, so certification is denied.
b. Pre- and Post-Shift Work; Work During Meal Breaks
Defendants correctly note “that employees are clocked out creates a presumption they are doing no work, a presumption [Plaintiffs] have the burden to rebut.” (Brinker, supra, 53 Cal.4th at p. 1051.) But Brinker also recognizes that “off-the-clock classes have been certified” when there is “substantial evidence of a systematic company policy to pressure or require employees to work off-the-clock.” (Ibid.)
As with meal and rest break practices, Plaintiffs’ 20+ declarants uniformly testify they were routinely required by supervisors to work off the clock. These employees worked at different locations throughout the state, but they all testify to managers making them work off the clock. Furthermore, Defendants had no formal policy prohibiting off-the-clock work (Allen depo. at pp. 182-83), which is a hurdle plaintiffs often find difficult to overcome when seeking to certify an off-the-clock class. Taken together, this evidence tends to indicate a company-wide common practice or informal policy of requiring off-the-clock work during busy times. At the very least, it appears the existence of such a common practice can be proven on a classwide basis.
Once again, however, the Court’s conclusion is based on the record before it, which does not include the sort of counter-declarations usually submitted by employers. The counter-evidence Defendants do offer is lacking. First, they contend Edith Rodriguez testified at deposition that she only worked after hours to drive people and items back to Dynamic’s lot. (E. Rodriguez Depo. at pp. 85-87.) But they omit that Edith Rodriguez only worked for Dynamic for two weeks, that this happened “several times” in those two weeks, and that these instances of off-the-clock work were at her supervisor’s request. (Ibid.) “Several” instances of off-the-clock work in two weeks doesn’t clash with Plaintiffs’ theory of a common practice of supervisors asking workers to work while clocked out.
They also contend Rodolfo Rodriguez didn’t work off the clock at two of the four dealerships to which he was assigned (Downey Nissan and Cerritos Dodge). (R. Rodriguez Depo. at pp. 17-18.) But he also testified he worked off-the-clock most Saturdays at Alhambra Mazda and Downtown LA Dodge. (Id. at p. 18.) This specific testimony backs up his more general testimony that “in general, it [off-the-clock work] would happen every Saturday, and Saturday was our busiest day.” (Id., at p. 16.) Notably, there’s no evidence of which days he worked at Downey Nissan and Cerritos Dodge. Absent evidence he worked at those dealerships on Saturdays, his testimony isn’t self-contradictory.
Defendants also attempt to put on the testimony of Daniel Ferrel and Israel Martinez, the plaintiffs in an overlapping putative class action. The Court has sustained Plaintiffs’ hearsay objection to this testimony.
On this record, the existence of a common practice or informal policy of management requiring off-the-clock work appears to be capable of common, classwide proof. “Proving at trial whether such informal or unofficial policies existed will drive the resolution” of the off-the-clock claim. (Jimenez v. Allstate Ins. Co. (9th Cir. 2014) 765 F.3d 1161, 1166.)
5. Rounding
There appears to be no dispute that Defendants had a rounding policy. Citing Donohue v. AMN Services, Inc. (2021) 11 Cal.5th 58 and Camp v. Home Depot USA, Inc. (2022) 84 Cal.App.5th 638 (rev. granted, S277518), Plaintiffs contend the rounding policy was illegal in both the shift beginning/end scenario and in the meal break scenario.
Defendants’ argument against certification focuses on the merits. They contend that Donohue’s holding is inapplicable to the hour-long meal breaks Defendants provide, and further that the Court should follow David v. Queen of Valley Medical Center (2020) 51 Cal.App.5th 653 and See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 to hold their rounding policy is legal.
Whether Defendants’ rounding policy is legal appears to be a question well-suited to common resolution. Defendants argue Plaintiffs have presented no evidence of actual underpayment due to the policy, but on Plaintiffs’ theory of the rounding claim, liability rises and falls on the policy itself. That is, if the rounding policy is illegal per Camp and Donohue, then liability for rounding is a simple comparison of clocked-in time to rounded time. This is easily established on a classwide basis through expert analysis of time data.
6. Reimbursement
Plaintiffs offer four theories of Labor Code § 2802 violations.
a. Uniforms: Shirts
Defendants’ dress code policy required employees to wear Dynamic-branded shirts when possible. (Stahle Decl., Ex. D, § 4.9; Ex. E, § 4.10.) Defendants required employees to put down a deposit on uniform shirts, with the deposit deducted from employees’ paychecks. (Allen Depo. at p. 78.) If an employee damaged a shirt or the shirt was worn out, Defendants would not refund the deposit when the shirt was returned. (Allen Depo. at p. 79.) Whether a shirt was too worn or damaged to be recirculated upon its return was a decision made by Zingg, the business manager. (Allen Depo. at pp. 79-80.)
This appears to be a common policy of making employees pay for Dynamic-branded uniform shirts without reimbursement in those cases where employees’ shirts are damaged or worn out in the course of normal work-related wear-and-tear. If this policy is illegal, then liability and damages should be a straightforward matter of seeing whether employees were refunded the deposits in their paychecks.
b. Uniforms: Pants and Shoes
Defendants required employees to wear black pants and black non-slip shoes purchased at their own expense. It appears undisputed this wasn’t reimbursed. Plaintiffs contend the expense was reimbursable. Defendants respond not by arguing commonality, but by arguing the merits. Relying on Townley v. BJ’s Restaurants, Inc. (2019) 37 Cal.App.5th 179, they contend the purchase of generic black work pants and non-slip shoes was not reimbursable.
Under Brinker, the legality of an across-the-board requirement to wear black pants and shoes purchased at employees’ own expense “is by its nature a common question eminently suited for class treatment.” (Brinker, supra, 53 Cal.4th at p. 1033.)
c. Tools and Equipment
Defendants’ payroll manager Allen testifies that if a painter needed a new spray gun, Defendants would deduct the charge of the spray gun from the employee’s paycheck until it was paid off. (Allen Depo. at pp. 88-89.) This appears to be evidence that Defendants required employees themselves to purchase tools necessary to complete their jobs without reimbursement. Whether such a policy is legal is capable of common, class-wide proof.
Defendants contend Plaintiffs misrepresent Allen’s testimony, and that his testimony was limited solely to new paint guns, not to required tools and equipment generally. They appear to argue Allen’s testimony must be interpreted in the light most favorable to Defendants, but they cite no authority for that proposition. (See Opp. at p. 20.) The Court believes that evidence of unreimbursed paint gun purchases is probative of a wider policy of unreimbursed tool and equipment purchases. In any event, even if the policy is limited to painters and new paint guns, it appears to be common as to painters.
d. Cell Phone Use
Plaintiffs and their declarants uniformly testify they had to use their cell phones to communicate with managers for work-related purposes. Defendants argue individual questions would predominate because they had a written policy expressly prohibiting the use of personal cell phones. Copies of that policy, allegedly signed by the Hormaecheas, Rodolfo Rodriguez, and Uribe are attached to Defendants’ notice of lodging. Because there’s no foundation for the fact that these were actually signed by Plaintiffs, the Court has sustained Plaintiffs’ objection on that ground. But Plaintiffs do not dispute the documents in fact exist in Defendants’ files.
Defendants’ alleged cell phone use policy is hardly as clear-cut as they argue. Neither the 2016 nor the 2019 handbook has a policy prohibiting personal cell phone use. In fact, the 2019 handbook expressly contemplates personal cell phone use by employees. It advises: “If you are a non-exempt employee, please be sure to report all hours that you work on a daily basis, including time spent using a tablet, a cell phone, email, and the internet for business purposes.” (Stahle Decl., Ex. E, at § 6.4.) Why would Defendants prohibit cell phone use while simultaneously directing employees to report cell phone use for business and/or compensation purposes? Furthermore, Allen testifies that Defendants have no policies that conflict with those in the handbook. (Allen Depo. at p. 66.) A bar on personal cell phone use for work would appear to conflict with a requirement that time spent on cell phones for work be reported for payroll purposes.
In any event, whether a common practice or informal policy of required cell phone use exists appears to be capable of common resolution on this record. Again, Defendants haven’t submitted any counter-declarations from employees saying they weren’t required to use their cell phones for work.
Defendants also argue necessity of cell phone use would have to be determined on a case-by-case basis, citing Alvarado v. Wal-Mart Associates, Inc. (C.D.Cal. 2021) 2021 WL 6104234. But in Alvarado, the evidence showed Sam’s Club employees had numerous methods of communicating other than cell phones, such as in-store land lines and company-provided walkie-talkies, and further that numerous class members never used cell phones for work purposes. (Id. at *2, *9.) On this record, no such evidence exists.
7. Derivative Claims (Waiting Time, Wage Statements, Recordkeeping, UCL)
The derivative claims all appear to turn on common questions because the underlying substantive claims (with the exception of reading time) all turn on common questions.
Defendants argue a willfulness/good faith analysis (for waiting time and wage statement purposes) defeats commonality. They contend individualized proof would be required to determine, as to each separated employee and each separate wage statement, whether there was a good faith dispute about whether additional wages were owed.
The Court disagrees. The good faith inquiry isn’t tied to any particular employee or paycheck, but instead to formal written policies and alleged common practices/informal policies that are uniformly applied. The good faith inquiry would apply across the board. For example, consider the 2016 rest break policy that required employees to remain on premises. Assume the policy violated the law. And assume Defendants had a good faith belief that the policy didn’t violate the law, one sufficient to preclude derivative waiting time or wage statement liability. What about this requires individualized proof? Defendants’ belief about the legality of the policy applies across the board. This is a question suited to common resolution.
Defendants separately argue there is no private right of action for recordkeeping violations under LC § 1174. This doesn’t preclude certification, because the existence of a private right of action would apply equally to all members of the class.
8. Misclassification
Finally, Plaintiffs contend that Defendants, and particularly Dynamic, retained a number of independent contractors who should have been classified as employees. Relying largely on Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, Defendants argue misclassification actions are very difficult to certify because misclassification necessarily depends on highly fact-specific inquiries, and they contend Plaintiffs’ proposed trial plan does not satisfy the concerns expressed in Duran.
Defendants’ reliance on Duran is misplaced. Duran concerned employees misclassified as exempt. When the claim is based on employees misclassified as independent contractors, the ABC test applies. (See Dynamex Operations West v. Superior Court (2018) 4 Cal.5th 903.) When the ABC test applies, the worker is presumed to be an employee, and the hiring entity bears the burden of satisfying all three prongs of the test to prove independent contractor status. (Id. at pp. 956-57.) Because the hiring entity must satisfy all three prongs of the test to prove independent contractor status, commonality under any one prong is sufficient to establish that a misclassification claim may be certified for class treatment. (See id. at p. 966 [“Because each part of the ABC test may be independently determinative of the employee or independent contractor question, our conclusion that there is a sufficient commonality of interest under part B of the ABC test is sufficient in itself to support the trial court's class certification order.”].)
Here, prong B of the test—whether the worker performs work outside the usual course of the hiring entity’s business—is susceptible to common proof. Defendants retained contractors to drive cars on lots and for paint jobs. (Zingg Depo. at p. 184.) Whether driving cars on lots and paint jobs are part of Defendants’ usual business appears to be capable of classwide proof. Indeed, in their opposition, Defendants contend as to all driver contractors that driving cars on lots is outside the scope of Defendants’ business. Following Dynamex, commonality on Prong B is enough to establish commonality for the misclassification claim.
D. Typicality
The named plaintiff in a class action must be typical of the class he or she represents. “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.” (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502 [quotations omitted].) “A class representative who does not have a claim against the defendants cannot satisfy the typicality requirement.” (Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 376.)
Typicality concerns not only the named plaintiff’s claims, but also any defenses the defendant might raise that are unique to the named plaintiff: “[C]lass certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation.” (Ibid. [quotation omitted].)
Defendants contest typicality in two respects, but these are the only challenges to typicality they raise. (They also challenge reading time, but the reading time cannot be certified for reasons discussed above.) Based on the Court’s review of the papers, Plaintiffs are typical for all claims not challenged by Defendants.
1. Uniforms: Shirts
Defendants contend Plaintiffs have put on no evidence that they ever requested or were charged a deposit for uniform shirts, so they lack standing. While Defendants pitch this as a challenge to standing, it’s really a typicality question: Plaintiffs are atypical if they don’t have a claim in the first place.
In reply, Plaintiffs put on evidence that they were charged deposits for uniform shirts. Defendants properly object to the attempt to introduce new evidence on reply, so the Court has not considered it. But Plaintiffs have already put on evidence that Defendants require employees to wear Dynamic-branded shirts when possible, and that employees are charged a deposit for their shirts. Even without pay stubs showing deductions for Plaintiffs’ deposits, this evidence is sufficient for the Court to find that Plaintiffs indeed paid t-shirt deposits.
2. Tools and Equipment
Defendants contend Plaintiffs have put on no evidence that they ever had paycheck deductions for the purchase of safety equipment. The Court agrees they haven’t, but this is ultimately irrelevant. Plaintiffs are typical for uniform shirts, and they are typical for cell phone use. That is, they are typical for purposes of a reimbursement claim. The harm addressed by § 2802—unreimbursed business expenses—is the same regardless of the nature of the expense incurred.
E. Adequacy
Plaintiff Rodolfo Rodriguez seeks to be appointed a class representative. The Court has no declaration on file from Rodolfo Rodriguez, and the proof of service for Plaintiffs’ opening papers does not list a declaration from Rodolfo Rodriguez among the documents served. As a result, the Court denies the motion as to Rodolfo Rodriguez, who has not met his burden of proving he would be an adequate class representative.
Based on its review of the other Plaintiffs’ declarations and the declarations of counsel, the Court finds the remaining Plaintiffs are adequate class representatives, and the Matern Law Group is adequate to serve as class counsel. Furthermore, Defendants do not challenge adequacy.
F. Superiority
Defendants do not appear to contest superiority. In any event, the Court finds class adjudication would be superior to individual adjudication. Plaintiffs’ theory of the case turns on uniform formal written policies and uniform common practices/informal policies. (Again, on this record, they appear to be common practices/informal policies.) The terms of those policies, and their legality, should not have to be proven 2,100 separate times.