Judge: Yvette M. Palazuelos, Case: 19STCV11220, Date: 2024-04-03 Tentative Ruling
Case Number: 19STCV11220 Hearing Date: April 3, 2024 Dept: 9
|
CYNTHIA KAWATA; et al., Plaintiffs, vs. THE BOEING COMPANY;
et al., Defendants. |
Case No.:
19STCV11220 Hearing Date: April 3, 2024 [TENTATIVE] order RE: Plaintiff’s motion for class
certification |
Background
This
is a putative wage-and-hour class action.
Plaintiff Cynthia Kawata (“Plaintiff”) alleges that she and the putative
class members are and were employed by Defendant The Boeing Company
(“Defendant”) and that Defendant violated the Labor Code, Industrial Welfare
Commission wage orders, and the Business and Professions Code.
On April 3, 2019, Plaintiff filed
the instant class action complaint and representative action under the Private
Attorneys General Act (“PAGA”). On
January 31, 2022, Plaintiff filed the operative second amended complaint (“SAC”). In the SAC, Plaintiff asserts ten causes of
action for (1) failure to provide meal periods; (2) failure to provide rest
breaks; (3) failure to pay minimum wages; (4) failure to pay overtime; (5)
failure to provide accurate wage statements; (6) failure to timely pay
wages; (7) violation of Business and Professions Code §§ 17200 et seq.;
(8) failure to reimburse necessary business expenses; (9) civil penalties under
PAGA; and (10) failure to timely pay wages upon termination.
On April 18, 2023, Plaintiff
filed the pending motion for class certification. On July 7, 2023, Defendant filed its
opposition. On July 31, 2023, Plaintiff
filed her reply. The hearing was
continued to April 3, 2024. (Continuance
8/15/23; Minute Order 9/12/23; Continuance 10/5/23.)
Evidentiary Objections
Defendant’s Evidentiary Objections
Declaration
of Brian Kriegler
1.
Overruled
2.
Overruled
3.
Overruled
Plaintiff’s Evidentiary Objections
Declaration
of Cynthia Kawata
1. Overruled
2. Sustained – Relevance
3. Sustained – Lack of
Foundation, Speculation
Legal Standard
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
an ascertainable class (mandatory);
·
Whether there is a
well-defined community of interest as to common questions of law or fact that
predominate (mandatory);
·
Whether the class
is so numerous that joinder of all members is impractical;
·
Whether the claims
of the representative plaintiff are typical of the class;
·
Whether
substantial benefits accrue to the litigants and courts;
·
Whether the
proposed class is manageable;
·
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.)
Discussion
Plaintiff seeks certification of (1)
a 9/80 Class consisting of “[a]ll non-union current and former hourly-paid or
non-exempt employees who worked a 9/80 alternative workweek schedule for any of
the Defendants within the State of California at any time during the period
from April 3, 2015 to the present[,]”
(Notice at p.1) and the various 9/80 subclasses, and (2) a Meal Period
Class consisting of “[a]ll non-union current and former hourly-paid or
non-exempt employees who worked one or more shifts in excess of six (6) hours
for any of the Defendants within the State of California at any time during the
period from April 3, 2015 to the present[,]” (Notice at p.2), and the various
Meal Period subclasses. For the
following reasons, the Court will defer ruling on Plaintiff’s motion for class
certification until Plaintiff submits a more detailed trial plan.
I.
Ascertainability
Plaintiff establishes with substantial evidence that the proposed class
and subclasses are ascertainable.
Defendant does not contest this issue.
Ascertainability “requires a class definition that is ‘precise,
objective and presently ascertainable.’ [Citation.] Otherwise, it is not
possible to give adequate notice to class members or to determine after the
litigation has concluded who is barred from relitigating.” (Global Minerals & Metals Corp. v.
Superior Court (2003) 113 Cal.App.4th 836, 858.) The class should be defined in terms of
objective characteristics and common transactional facts that will enable
identification of the class members when such identification becomes
necessary. (Hicks, supra, 89
Cal.App.4th at p.915.)
“[T]he goal is to use terminology that will convey sufficient meaning
to enable persons hearing it to determine whether they are members of the class
plaintiffs wish to represent.” (Global
Minerals & Metals Corp., supra, 113 Cal.App.4th at p.858.)
Importantly, “[a] class is still ascertainable even if the definition
pleads ultimate facts or conclusions of law.”
(Hicks, supra, 89 Cal.App.4th 908, 915.) “A class is ascertainable if objective means
are available to identify its individual members at a reasonable expense.” (Bridgeford v. Pacific Health Corp.
(2012) 202 Cal.App.4th 1034, 1041.)
Here, the proposed classes and subclasses are ascertainable. Plaintiff seeks to certify a 9/80 Class,
defined as: “All non-union current and former hourly-paid or non-exempt
employees who worked a 9/80 alternative workweek schedule for any of the
Defendants within the State of California at any time during the period from
April 3, 2015 to the present.” (Notice
at p.1.) Plaintiff also seeks to certify
the following 9/80 Subclasses:
Alternative Workweek Daily Overtime Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked for any of the Defendants within
the State of California and pursuant to a 9/80 alternative workweek schedule
and were not paid daily overtime for work in excess of eight (8) but less than
ten (10) hours at any time during the period from April 3, 2015 to the present.
Alternative Workweek Conversion Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked for any of the Defendants within
the State of California and were converted from a 5/40 schedule to a 9/80
alternative workweek schedule at any time during the period from April 3, 2015
to the present.
Alternative Workweek Weekly Overtime Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked a 9/80 alternative workweek
schedule and who worked in excess of forty (40) hours in a calendar week for
any of the Defendants within the State of California at any time during the
period from April 3, 2015 to the present.
9/80 Terminated Employee Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked a 9/80 alternative workweek
schedule for any of the Defendants within the State of California at any time
during the period from April 3, 2016 to the present, and who were not properly
paid all wages on termination or within 72 hours thereof.
9/80 Wage Statement Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked a 9/80 alternative workweek
schedule for any of the Defendants within the State of California and who
received an itemized wage statement at any time during the period from April 3,
2016 to the present.
(Notice at pp.1–2.)
In addition, Plaintiff seeks to certify a Meal Period Class, defined as
“All non-union current and former hourly-paid or non-exempt employees who
worked one or more shifts in excess of six (6) hours for any of the Defendants
within the State of California at any time during the period from April 3, 2015
to the present.” (Notice at p.2.) Plaintiff also seeks to certify the following
Meal Period Subclasses:
Meal Period Terminated Employee Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked one or more shifts in excess of
six (6) hours for any of the Defendants within the State of California at any
time during the period from April 3, 2016 to the present, and who were not
properly paid all wages on termination or within 72 hours thereof.
Meal Period Wage Statement Subclass: All non-union current and former
hourly-paid or non-exempt employees who worked one or more shifts in excess of
six (6) hours for any of the Defendants within the State of California and who
received an itemized wage statement at any time during the period from April 3,
2016 to the present.
(Notice at pp.2–3.)
Here, the putative class and
subclass members are readily identifiable from Defendant’s business and
personnel records. For example, Defendant’s
designees note Defendant’s employees with an Alternative Workweek Schedule
(“AWS”) class, such as the employees in the 9/80 Class and subclasses, can be
determined through Defendant’s records.
(Plaintiff’s Compendium of Evidence “COE”; COE48 [Koshar Depo. at p.114:12-18];
COE155 [Wise Depo. at p.70:10-19].) Moreover,
Defendant’s records reflect the hours worked by employees. (COE150-51; 151-52; 153-54; 183; 184-85 [Wise
Depo. at pp.59:8-60:1, 60:25- 61:15, 68:17-69:11; 153:11-20; 156:22-157:8].) Thus, the Meal Period Class and subclasses can
also be determined by Defendant’s records.
II.
Numerosity
Plaintiff has established with
substantial evidence that the proposed class is sufficiently numerous. Defendant does not contest this issue.
“[T]here is no set number required
as a matter of law for the maintenance of a class action.” (Hebbard v. Colgrove (1972) 28
Cal.App.3d 1017, 1030.) In fact, California
case law indicates that a class with as few as 10 or 28 members satisfies
numerosity. (See Bowles v. Superior
Court (1955) 44 Cal.2d 574; see also Hebbard, supra, 28 Cal.App.3d at p.1030.)
Here, the proposed 9/80 class consists of approximately 350 members. (Kriegler Decl. ¶¶ 10, 28 [noting that a 10%
sample of AWS employees was 35 employees]; COE74 [Tsuda Depo at p.26:14-20] [estimating
that the number of employees on a 9/80 AWS would be safely over 100].) The proposed Meal Period class consists of
approximately 1,450 members. (Kriegler Decl. ¶ 22 [noting that a 10% sample of
the Meal Period class was 145].) By the proposed
9/80 class definition, all 9/80 putative class members were on what Defendant
designated a 9/80 schedule, which would qualify them for the proposed Alternative
Workweek Daily Overtime Subclass – as each of the putative 9/80 Class worked
more than 8 hours four days of the week – and proposed Alternative Workweek
Weekly Overtime Subclass – as each of the putative 9/80 class worked more than
40 hours every other standard Saturday-Sunday week. Similarly, the putative 9/80 Wage Statement
Subclass and the Meal Period Wage Statement Subclass fully encompass all
members of the putative 9/80 Class and putative Meal Period Class as all of
Defendant’s employees received wage statements.
(COE134 [Tsuda Depo. at p.180:7-9].)
Finally, the putative 9/80 and Meal Period Terminated Employee
Subclasses are subsets of the putative 1,450-person Meal Period Class and putative
350-person 9/80 Class, respectively.
Plaintiff expects that the proposed terminated employee subclasses will
be sufficiently numerous, which Defendant does not dispute. This unopposed expectation is not
unreasonable given the period of time covered – April 3, 2015 to present for
the 9/80 Class and from April 3, 2016 to present for the Meal Period Class – and
the respective size of the classes that each of the terminated employee
subclasses will have at least 10 members respectively.
Accordingly, the proposed classes are sufficiently numerous.
III.
Commonality
In deciding whether the common
questions “predominate,” courts must identify the common and individual issues;
consider the manageability of those issues; and, taking into account the
available management tools, weigh the common issues against the individual
issues to determine which of them predominate.
(See Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422,
1432–1433).
Additionally, commonality “does not
depend upon an identical recovery, and the fact that each member of the class
must prove his separate claim to a portion of any recovery by the class is only
one factor to be considered in determining whether a class action is proper.
The mere fact that separate transactions are involved does not of itself
preclude a finding of the requisite community of interest …” (Vasquez v. Superior Court (1971) 4
Cal.3d 800, 809.) However, a class action “will not be
permitted . . . where there are diverse factual issues to be resolved, even
though there may be many common questions of law.” (Brown v. Regents of Univ. of
California (1984) 151 Cal.App.3d 982, 988–989.) “[E]ach member must not be required to
individually litigate numerous and substantial questions to determine his right
to recover following the class judgment[.]”
(City of San Jose, supra, 12 Cal.3d at p.460.) In Arenas v. El Torito, Inc. (2010)
183 Cal.App.4th 723, the Court of Appeal observed:
The focus in a class certification dispute is
not entirely on the merits but on the procedural issue of what types of
questions are likely to arise in the litigation—common or individual.
[Citations.] Thus, the existence of some common issues of law and fact does
not dispose of the class certification issue. [Citations.] Rather, in order
to justify class certification, the Supreme Court held, “[T]he proponent of
certification must show . . . that questions of law or fact common to the class
predominate over the questions affecting the individual members . . . .”
(Id. at p.732
[Italics Added].)
On a class certification motion, “‘the trial court must evaluate
whether the theory of recovery advanced by the plaintiff is likely to
prove amenable to class treatment.’ [Citation.]” (Jaimez v. Daiohs USA, Inc.
(2010) 181 Cal.App.4th 1286, 1298 [bold added].) “‘Predominance is a comparative concept, and “the
necessity for class members to individually establish eligibility does not mean
individual fact questions
predominate.” [Citation.]’” (Medrazo
v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99–100.) Common issues are predominant when such
issues would be primary to each individual action. (Caro v. Procter & Gamble Co.
(1993) 18 Cal.App.4th 644, 667–668.) In
addressing the commonality element, the Supreme Court in Brinker court
stated:
[W]hether common or individual questions
predominate will often depend upon resolution of issues closely tied to the
merits. [Citations.] To assess predominance, a court “must examine the issues
framed by the pleadings and the law applicable to the causes of action
alleged.” [Citation.] It must determine whether the elements necessary to
establish liability are susceptible of common proof or, if not, whether there
are ways to manage effectively proof of any elements that may require
individualized evidence. [Citation.] In turn, whether an element may be
established collectively or only individually, plaintiff by plaintiff, can
turn on the precise nature of the element and require resolution of disputed
legal or factual issues affecting the merits. For example, whether reliance or a breach of
duty can be demonstrated collectively or poses insuperable problems of
individualized proof may be determinable only after closer inspection of the
nature of the reliance required or duty owed and, in some instances, resolution
of legal or factual disputes going directly to the merits.
(Brinker
Restaurant Corp., supra, 53 Cal.4th at p.1024, [Italics Added].)
In sum, “[p]resented with a class certification motion, a trial court
must examine the plaintiff’s theory of recovery, assess the nature of the legal
and factual disputes likely to be presented, and decide whether individual or
common issues predominate. To the extent
the propriety of certification depends upon disputed threshold legal or factual
questions, a court may, and indeed must, resolve them. Out of respect for the
problems arising from one-way intervention, however, a court generally should
eschew resolution of such issues unless necessary.” (Brinker Restaurant Corp., supra, 53
Cal.4th at p.1025.)
Here, Plaintiff seeks to certify the following claims for class
treatment: (1) failure to pay overtime wages; (2) failure to provide meal
periods; (3) failure to timely pay wages upon termination; (4) failure to
provide accurate wage statements; and (5) violation of Business and Professions
Code §§ 17200 et seq.
a.
Commonality as to Unpaid Overtime Claim
Plaintiff has established with substantial evidence that common
questions predominate as to her unpaid overtime claim.
“As a general rule, overtime pay is required for each hour in excess of
eight hours in one day, or 40 hours in one week.” (Maldonado v. Epsilon Plastics, Inc.
(2018) 22 Cal.App.5th 1308, 1313; see also Lab. Code, § 510(a).) “This does not apply, however, to an employee
working pursuant to a properly adopted AWS.”
(Maldonado, supra, 22 Cal.App.5th at p.1327; see e.g., Lab.
Code, § 510(a)(1).) Under Labor Code § 511,
an employer “may adopt an AWS only if it receives approval in a secret ballot
election by at least two-thirds of the affected employees. Specific
requirements for the adoption of an AWS are then set forth in the applicable
wage orders.” (Maldonado, supra, 22
Cal.App.5th at p.1314.)
Here, as in Maldonado,
the applicable wage order is “Industrial Welfare Commission wage order 1-2001.
(Cal. Code Regs., tit. 8, § 11010.)” (Maldonado, supra, 22 Cal.App.5th at
p.1314.) As Maldonado explained:
The wage order provides detailed requirements
for the adoption of such an AWS:
- it shall begin with a proposal “in the form
of a written agreement proposed by the employer” (Cal. Code Regs., tit. 8, §
11010, subd. 3(C)(1) );
- in “order to be valid, the proposed alternative workweek schedule must
be adopted in a secret ballot election, before the performance of work, by at
least a two-thirds (2/3) vote of the affected employees in the work unit. The
election shall be held during regular working hours at the employees' work
site” (id. at subd. 3(C)(2) );
- prior to the vote, the employer “shall have
made a disclosure in writing to the affected employees, including the effects
of the proposed arrangement on the employees' wages, hours, and benefits. Such
a disclosure shall include meeting(s), duly noticed, held at least 14 days
prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule” (id. at subd. 3(C)(3) );
-The results of the election shall be
reported by the employer to the Division of Labor Statistics and Research
within 30 days (id. at subd. 3(C)(6) );
-Employees affected by the AWS “may not be
required to work those new work hours for at least 30 days after the
announcement of the final results of the election” (id. at subd. 3(C)(7)
); and
-The employer “shall not intimidate or coerce
employees to vote either in support of or in opposition to a proposed
alternative workweek” (id. at subd. 3(C)(8) ).
(Maldonado,
supra, 22 Cal.App.5th at pp.1314-1315.)
Under a properly implemented AWS
pursuant to this Wage Order, “[n]o employer shall be deemed to have violated
the daily overtime provisions by instituting, pursuant to the election
procedures set forth in this wage order, a regularly scheduled alternative
workweek schedule of not more than ten (10) hours per day within a 40 hour
workweek without the payment of an overtime rate of compensation.” (Cal. Code Regs., tit. 8, § 11010(3)(B)(1); see
also Lab. Code, § 511(a).)
“ ‘[T]he assertion of an exemption from the overtime laws is considered
to be an affirmative defense, and therefore the employer bears the burden of
proving the employee's exemption. [Citations.]’ ” (Maldonado, supra, 22 Cal.App.5th at
p.1327 [Quoting Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785,
794-795].)
Here, the putative 9/80 Class regularly works more than eight hours per
day without compensation for daily overtime.
(COE51 [Koshar Depo. at p.119:5-11]; COE72, COE94, COE127 [Tsuda Depo.
at pp.24:7-14; 52:14-18; 134:7-9].) As
to the putative 9/80 Class, Defendant implemented a 9/80 AWS where the affected
employees worked 9 hours every Monday through Thursday and 8 hours every other
Friday. (COE166-69 [Wise Depo. at pp.102:24-103:19;
103:24-104:10; 104:23-105:4]; COE395 [Exh. J, Boeing Paid Time at Work Policy
Handbook, November 2021]; COE73 [Tsuda Depo. 25:6-10].) In a standard Saturday through Sunday week,
this would result in 36 hours one week and then 44 hours the next standard
Saturday through Sunday week. To avoid
the weekly overtime of 40-hours per week every other week, Defendant designates
a workweek that commences in the middle of each
employee’s Friday shift and varies depending on the employee’s start time
that day resulting in each workweek only having 40 working hours. (COE31, COE36-37 [Koshar Depo. at pp.28:19-21;
42:11-43:11]; COE228 [Exh. H, Boeing’s Paid Time at Work Policy Handbook
January 2018].)
A properly implemented 9/80 AWS where the workweek is split to start midday
on Friday is not per se illegal. To the
contrary, “both the [Department of Industrial Relations, Division of Labor
Standards Enforcement “DSLE”] of and the Department of Labor have for many
years approved of the so-called 9/80 schedule, under which (as an example)
employees work nine hours Monday through Thursday and eight hours on Friday of
one week and nine hours Monday through Thursday of the second week—i.e., nine
work days within two calendar weeks totaling 80 hours. By designating the start
of the ‘workweek’ as mid-day on Friday, thereby placing four hours of that day
into each workweek, the employee works no more than 40 hours in one workweek
and no overtime premium is due.” (Seymore
v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 369 disapproved on
other grounds in Mendiola v. CPS Security Solutions, Inc. (2015) 60
Cal.4th 833.)
Rather, Plaintiff’s primary theories of liability are that (1)
Defendant’s use of variable workweeks is improper, and (2) Defendant did not
properly implement an AWS.
As to the first primary theory of liability, Plaintiff contends that
Defendant’s use of variable workweeks where the workweek is individualized to
each employee and starts mid-shift on Friday is improper as the workweek is not
a “fixed and regularly recurring period.”
As defined by the Labor Code, a “workweek” “mean[s] any seven
consecutive days, starting with the same calendar day each week. ‘Workweek’ is
a fixed and regularly recurring period of 168 hours, seven
consecutive 24-hour periods.” (Lab.
Code, § 500(b), [Italics Added].) Plaintiff
further contends that even if use of a variable workweek is not per se improper
for an AWS plan, Defendant’s specific use of a variable workweek is an improper
attempt primarily designed to evade overtime compensation. (Seymore, supra, 194 Cal.App.4th at p.369,
[“Under both federal and state labor laws, it is clear that an employer may not
designate its workweek in a manner that is designed primarily to evade overtime
compensation.”] disapproved on other grounds in Mendiola v. CPS
Security Solutions, Inc. (2015) 60 Cal.4th 833.)
This first primary theory of liability – based on Plaintiff’s contention
that the use of variable workweeks is invalid – presents common issues of fact
and law that predominate. In light of
the fact that the policy of variable workweeks is applicable to the entire
putative 9/80 Class, the question of law of whether the variable workweek was per
se improper will be uniform – i.e., the use of a variable workweek is
proper for the entire class, or it is not proper for the entire class. Similarly, whether Defendant’s use of a
variable workweek is an improper attempt primarily designed to evade overtime
compensation will also be based on common facts and questions of law. In opposition, Defendant does not address
these arguments or contend that these contentions would not apply class wide.
As to the second primary theory of liability, Plaintiff contends that
the implementation and election procedures for AWS for the putative 9/80 Class
was improper because (a) the schedule implemented was different than the
schedule defendant disclosed, (b) there is no evidence that Defendant allowed
the participation of all employees in the respective work units, (c) there is
no evidence Defendant mailed its disclosures to non-attendees, and (d)
Defendant may have included non-affected employees in the respective AWS
elections.
Plaintiff claims that “Defendant informed employees on multiple occasions only that they would be working nine hours per day Monday through Thursday, and eight hours per day every other Friday.” (Motion at p.7:24-25; see e.g., COE445 [Proposed AWS for Nonexempt Salaried employees who work at the El Segundo Site on 1st and 2nd shift].) Under the applicable wage order, in the proposed AWS agreement, the employer “must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring.” (Cal. Code Regs., tit. 8, § 11010(3)(C)(1), [Italics Added].) Under the Labor Code, the term “workday” means “any consecutive 24-hour period commencing at the same time each calendar day.” (Lab. Code, § 500(a).) Here, Defendant designation of the workweek began in the middle of each employee’s Friday shift. (COE31, COE36-37 [Koshar Depo. at pp.28:19-21; 42:11-43:11]; COE228 [Exh. H, Boeing’s Paid Time at Work Policy Handbook January 2018].) Confirming Plaintiff claims that the workdays would switch from the standard calendar days to mid-day to mid-day. Thus, Plaintiff reasons that “the AWS schedule Defendant actually implemented is not
 |
(Motion at
p.7:7-15.)
Plaintiff claims that because the schedule implemented was different from
the schedule defendant disclosed, the applicable AWS for the putative 9/80
Class were improper and therefore invalid and overtime was due.
As to participation in the elections for the putative 9/80 Class in
their respective AWS elections, the applicable Wage Order requires that “[i]n
order to be valid, the proposed alternative workweek schedule must be adopted
in a secret ballot election, before the performance of work, by at least a
two-thirds ( 2/3 ) vote of the affected employees in the
work unit. For purposes of this subsection, ‘affected employees in the work
unit’ may include all employees in a readily identifiable work unit,
such as a division, a department, a job classification, a shift, a separate
physical location, or a recognized subdivision of any such work unit.” (Cal. Code Regs., tit. 8, § 11010(3)(C)(2).) However, as Defendant’s designee noted in
deposition, there was no specific policy of how to identify a work unit other
than based on the manager requesting it.
(COE83, COE104-105 [Tsuda Depo. at pp.36:12-22; 65:18-24; 66:9-16].) Further, most of the AWS documents that may
have existed have been lost or discarded, or never existed. (COE92-93, COE110, COE120-122;
COE130-131, COE135-138, [Tsuda Depo. at pp.49:22- 50:9; 87:10-15; 118:11-19;
119:1-11; 124:3-16; 151:11-15; 152:3-5, 151:17-22; 208:13-209:19; 210:20-211:17];
COE57-59 [Koshar Depo. at pp.145:16-146:2; 148:16-21].)
Plaintiff contends that Defendant will
be unable to prove the affirmative defense of AWS because the applicable wage
order requires an identifiable work unit, and Defendant did not have a
consistent policy to designate work units and will be unable to prove there were
identifiable work units due to Defendant’s lack of evidence regarding AWS
elections.
Plaintiff’s claim that there is no
evidence that the Defendant mailed its
disclosures to non-attendees is based off the relevant wage order requiring
mailing, the lack of documentation regarding the AWS elections, and that emailing
the disclosures to non-attendees does not satisfy the mailing requirement. In relevant part the applicable Wage Order
provides that prior to the secret ballot vote for an AWS, an employer proposing
an AWS “shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages,
hours, and benefits. Such a disclosure shall include meeting(s), duly noticed,
held at least 14 days prior to voting, for the specific purpose of discussing
the effects of the alternative workweek schedule. … The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to
comply with this paragraph shall make the election null and void.” (Cal. Code Regs., tit. 8, § 11010(3)(C)(3),
[Italics added].) Moreover, some
evidence indicates that most of the AWS documents that may have existed have
been lost or discarded, or never existed. (COE92-93, COE110, COE120-122;
COE130-131, COE135-138, [Tsuda Depo. at pp.49:22- 50:9; 87:10-15; 118:11-19;
119:1-11; 124:3-16; 151:11-15; 152:3-5, 151:17-22; 208:13-209:19;
210:20-211:17]; COE57-59 [Koshar Depo. at pp.145:16-146:2; 148:16-21].)
As to Plaintiff’s contention that the AWS was
invalid because Defendant may have included non-affected employees in the
respective AWS elections, the relevant Wage Order requires that “[i]n order to
be valid, the proposed alternative workweek schedule must be adopted in a
secret ballot election, before the performance of work, by at least a
two-thirds ( 2/3 ) vote of the affected employees
in the work unit.” (Cal. Code Regs.,
tit. 8, § 11010(3)(C)(2), [Italics Added].)
Here, Defendant’s practice was that after every AWS vote, each voter at
the conclusion of a positive vote would be presented with an agreement to join
the AWS schedule, and if the employee declined, that employee was not required
to join the AWS schedule. (COE125,
[Tsuda Depo. at p.130:7-18].) In
essence, after each successful vote for an AWS – such as for a 9/80 AWS – the
employees who voted for it would then have to opt-in for the AWS schedule to
apply. Plaintiff contends that by implementing
this opt-in system, Defendant counted the votes of employees who did not opt-in
to the AWS and would thus not be affected by the AWS. Thus, Plaintiff contends that the votes for
the respective AWSs included votes by nonaffected employees. Plaintiff then asserts that by including
nonaffected employees, the respective AWS elections were invalid.
Plaintiff’s second primary theory, based on
improprieties in the implementation and election procedures for the AWS for the
putative 9/80 Class, is more factually based than Plaintiff’s first primary
theory that the designated variable workweeks were proper. However, common questions of fact and law
still predominate as to Plaintiff’s second primary theory of liability as to
the overtime claim. Though there were
multiple AWS elections, (See e.g., Tsuda Decl. ¶ 4), the factual questions at
issue – based on Plaintiff’s theory of liability – are common to the 9/80 Class. Many of Plaintiff’s arguments as to why the
AWS elections for the putative 9/80 class were invalid are based on companywide
policy – such as requiring Defendant’s employees opt-in after an AWS vote,
(COE125, [Tsuda Depo. at p.130:7-18]), or a lack of companywide policy in
having identifiable work units. (COE83,
COE104-105 [Tsuda Depo. at pp.36:12-22; 65:18-24; 66:9-16].)
Some of Plaintiff’s theories as to the impropriety
of AWS elections – such as improper notices of the designated workdays and whether
notices were mailed – are not inherently the same as each AWS and the
respective notices could have been different.
Nothing in Plaintiff’s evidence demonstrates significant differences in
the notices for various AWS elections or how Defendant provided the notices for
various AWS elections as it appears that much of this evidence is universally
missing. (COE92-93, COE110, COE120-122;
COE130-131, COE135-138, [Tsuda Depo. at pp.49:22- 50:9; 87:10-15; 118:11-19;
119:1-11; 124:3-16; 151:11-15; 152:3-5, 151:17-22; 208:13-209:19;
210:20-211:17]; COE57-59 [Koshar Depo. at pp.145:16-146:2; 148:16-21].) Similarly, the opposition does not indicate
that there is evidence that the AWS elections were different, and thus, individual
questions of fact and law would predominate.
In opposition, Defendant contends that
individual questions predominate because there were 66 AWS elections in
California over twenty-one years. (Tsuda
Decl. ¶ 4, Exhs. 1-65.) However, eleven
of these elections did not involve 9/80 AWS similar to the putative class
sought to be certified. (Tsuda Decl. ¶¶
4(a),(c), (f), (v), (x), (aa), (hh), (vv), (aaa), (kkk), (lll), Exhs. 1, 3, 6,
22, 24, 27, 34, 48, 53, 63, 64.) Of the
remaining 55 AWS elections that Defendant has ever conducted in California,
only five occurred in the time period sought to be certified – i.e.,
April 3, 2016 onward. (Tsuda Decl. ¶¶
4(hhh)-(jjj), (mmm), (nnn).) The prior AWS
elections may nonetheless be relevant because employees who worked from April
3, 2016 to the present may be subject to a 9/80 AWS set in place by one of the
prior 50 AWS elections. However, Defendant
concedes that many locations have shut down in the twenty years since the first
AWS election in California. (Tsuda Decl.
¶ 5.) Thus – at most – Defendant points
to the possibility that there could be differences in the between five
and 55 AWS elections applicable to the putative 9/80 class. However, Defendant does not provide any evidence
that were significant differences in the 55 AWS elections such that individual
issues would predominate the putative 9/80 Class. A defendant cannot defeat class
certification by raising a hypothetical “possibility” without any evidentiary
backing. (Ramirez v. Balboa Thrift & Loan (2013) 215 Cal.App.4th
765, 782-783, [citing Brinker Restaurant Corp., supra, 53 Cal.4th at p.1025]; see also ABM
Industries Overtime Cases (2017) 19 Cal.App.5th 277, 306-307, [defendant’s
“speculation” that certain facts might exist, without more, is an insufficient
basis to deny class certification].)
In sum, as
to the claims for overtime for the 9/80 Class, common issues of fact and law
predominate, supporting class certification.
b.
Commonality as to Meal Break Claim
Plaintiff has established with substantial evidence that common
questions predominate as to her meal and rest break claims.
Under Labor Code § 512(a):
An employer shall not employ an employee for
a work period of more than five hours per day without providing the employee
with a meal period of not less than 30 minutes, except that if the total work
period per day of the employee is no more than six hours, the meal period may
be waived by mutual consent of both the employer and employee. An employer shall not employ an employee for
a work period of more than 10 hours per day without providing the employee with
a second meal period of not less than 30 minutes, except that if the total
hours worked is no more than 12 hours, the second meal period may be waived by
mutual consent of the employer and the employee only if the first meal period
was not waived.
Under Brinker, “[a]bsent circumstances permitting an on-duty
meal period, an employer’s obligation is to provide an off duty meal period: an
uninterrupted 30-minute period during which the employee is relieved of all
duty.” (Brinker Restaurant Corp.,
supra, 53 Cal.4th at p.1035.) The
employer “need not ensure that the employee does no work.” (Id. at p.1034.) “Proof an employer had knowledge of employees
working through meal periods will not alone subject the employer to liability
for premium pay; employees cannot manipulate the flexibility granted them by
employers to use their breaks as they see fit to generate such liability.” (Id.
at 1040.) However, “an employer may not
undermine a formal policy of providing meal breaks by pressuring employees to
perform their duties in ways that omit breaks.”
(Ibid.)
“It 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.” (Donohue
v. AMN Services, LLC (2021) 11 Cal.5th 58, 81.) Accordingly, “time records showing
noncompliant meal periods raise a rebuttable presumption of meal period
violations…” (Id. at p.61.)
Here, Plaintiff theory of liability as to the meal period claim is that
Defendant’s timekeeping system does not facilitate for accurate record keeping
of employees’ meal periods. There is
only one timekeeping system for all of Defendant’s nonexempt employees – the
ETS system. (COE25-26 [Koshar Depo. at
pp.13:18-14:19]; COE159-60 [Wise Depo. at pp.78:22-79:18].) The ETS system only permits an employee to
input the start time of the meal period, no end time is entered as the system
automatically enters 30 minutes for the unpaid meal period. (COE159-60 [Wise Depo. at pp.78:22-79:18].) Because the ETS system does not allow for
employees to input the end time of the 30-minute unpaid meal period, Plaintiff
contends that ETS shows noncompliant meal periods, and the rebuttable
presumption of meal period violations applies.
(Donohue, supra, 11 Cal.5th at p.61.) As Plaintiff’s theory of liability is based
on a uniform time system preventing inputting the end of a meal period, Plaintiff’s
meal period claim is susceptible to common proof. (See e.g., Faulkinbury v. Boyd &
Associates, Inc. (2013) 216 Cal.App.4th 220, 235 [156 Cal.Rptr.3d 632, 643]
disapproved of on other grounds by Noel v. Thrifty Payless, Inc.
(2019) 7 Cal.5th 955 [“the employer's liability arises by adopting a uniform
policy that violates the wage and hour laws. Whether or not the employee was
able to take the required break goes to damages, and ‘[t]he fact that
individual [employees] may have different damages does not require
denial of the class certification motion.’”].)
In opposition, Defendant
disputes Plaintiff’s contention that the ETS records are inaccurate. As Defendant’s Systems and Data
Analyst explains, all incoming
employees were trained in how to use the ETS system. (Wise Decl. ¶¶ 1, 3, Exh. D [ETS Reference
Center Table of Contents].) In ETS, employees
were responsible to enter a “Baseline Schedule” showing their start time,
number of hours worked, and meal period start time for each workday of a
two-week pay period. (Wise Decl. ¶
4.) However, if the workday varied, the
employee was required to enter a temporary schedule showing the actual time
worked. (Wise Decl. ¶ 5, Exh. E [Screenshot
of Example of Baseline Schedule and Temporary Schedule in ETS].) Employees would then be required to review
their workweek on a weekly basis and then sign off and approve that the
recorded time in ETS accurately reflected their actual time worked. (Wise Decl.
¶¶ 2, 9; Exhs A-C [ETS Policies].)
In sum, Defendant asserts that
Plaintiff’s claim that the ETS shows noncompliant meal periods is incorrect – i.e.,
that Plaintiff’s claim is not meritorious.
However, questions of merit are not generally considered 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”].)
Defendant’s further claims that “even
if some presumption of noncompliance does arise from the ETS, [Defendant] must
be given an opportunity to prove that it ‘provided’ proper meal periods”, (Opp.
at p.27:20-22), and that therefore the Court would have to conduct
individualized inquires into each putative Meal Period Class member, making
certification improper. However, the
Supreme Court directly addressed this issue noting that “Employers can rebut the presumption by
presenting evidence that employees were compensated for noncompliant meal
periods or that they had in fact been provided compliant meal periods during
which they chose to work. ‘Representative testimony, surveys, and statistical
analysis,’ along with other types of evidence, ‘are available as tools to
render manageable determinations of the extent of liability.’” (Donohue, supra, 11 Cal.5th at p.77.) Given these tools at the Court’s disposal, it
is unclear why Defendant could not use representative testimony, surveys, or
statistical analysis to rebut the presumption that Defendant asserts does not
even apply. As such, Defendant’s
contentions do not defeat certification.
c.
Commonality as to Wages Due on Termination
Plaintiff has established with substantial evidence that common
questions predominate as to her wages due on termination claim.
Labor Code §§ 201–202 require an employer to pay departing employees
all accrued wages within strict statutory time limits. When the employer willfully fails to do so,
the unpaid wages accrue as a penalty for up to 30 days. (Lab. Code, § 203.)
Here, Plaintiff’s claim for failure to timely pay wages due on
termination is based on the failure to pay overtime and meal break period and
is therefore based on the same common proof as discussed above. Accordingly, this issue is appropriate for
class treatment.
d.
Commonality as to Wage Statement Claims
Plaintiff has established with substantial evidence that common
questions predominate as to her wage statement claim.
In California, employers must furnish employees with accurate itemized
wage statements showing, inter alia, the “total hours worked by the employee,”
and “all applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate by the
employees.” Lab. Code, § 226(a)(6).
Here, Plaintiff contends that because the wage statements do not
include overtime or properly include meal periods, the wage statements violate
Labor Code § 226. The claimed failure to
include overtime or to properly include meal periods would be subject to common
proof.
In addition, Plaintiff claims a non-derivative wage statement
claim. Every year, Defendant converts
its employees to a traditional 5/40 schedule (five days per week, eight hours
per day) from Thanksgiving through the end of the year, and converts employees
back to the 9/80 schedule at the start of each year. (COE156; 157 [Wise Depo. at pp.72:16-23,
73:10-13].) Under the 5/40 schedule,
Defendant’s workweek commences midnight on Friday, but for purposes of the 9/80
AWS, Defendant’s workweek commences mid-shift on Friday. (See e.g., COE289.) Plaintiff contends that because the four
hours of every other mid-shift on Friday was moved to the next week, Defendant
should have added four hours to the 5/40 schedule, resulting in four hours of
overtime which was not included in the pay stubs for the affected employees in
the 9/80 Alternative workweek conversion
subclass. Whether the 9/80 Alternative
workweek conversion subclass’s wage statements are inaccurate is subject to
common proof of whether the timesheets accurately converted time from 9/80 to
5/40.
e.
Commonality as to UCL Claim
Plaintiff has established with substantial evidence that common
questions predominate as to her Unfair Competition Law claim.
The purpose of
California’s Unfair Competition Law (“UCL”) “is to protect both consumers and
competitors by promoting fair competition in commercial markets for goods and
services. [Citation.]” (Kasky v. Nike, Inc. (2002) 27 Cal.4th
939, 949.) Thus, the UCL prohibits
unlawful, unfair or fraudulent business acts or practices. (Bus. &
Prof. Code, § 17200.) “The Legislature intended this ‘sweeping language’ to
include ‘anything that can properly be called a business practice and that at
the same time is forbidden by law.’” (Bank of the West v. Sup. Ct.
(1992) 2 Cal.4th 1254, 1266.) “A
plaintiff alleging unfair business practices under these statutes must state
with reasonable particularity the facts supporting the statutory elements of
the violation.” (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 619.)
“Because the
statute is framed in the disjunctive, a business practice need only meet one of
the three criteria to be considered unfair competition.” (Durell v. Sharp Healthcare (2010) 183
Cal.App.4th 1350, 1359.) Section 17200’s
“unlawful” prong “borrows violations of other laws ... and makes those unlawful
practices actionable under the UCL.” (Klein
v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) “[V]irtually any law or regulation—federal or
state, statutory or common law—can serve as [a] predicate for a ... [section]
17200 ‘unlawful’ violation.’ ” (Ibid.) “A business practice is “fraudulent” within
the meaning of section 17200 if it is “likely to deceive the public.” (Id. at p.1380.) “‘A business practice
is unfair within the meaning of the UCL if it violates established public
policy or if it is immoral, unethical, oppressive or unscrupulous and causes
injury to consumers which outweighs its benefits.’ [Citation.]” (Nolte v. Cedars-Sinai Medical Center
(2015) 236 Cal.App.4th 1401, 1407–1408.)
The determination of whether a business practice is unfair involves an
examination of that practice’s impact on its alleged victim, balanced against
the reasons, justifications, and motives of the alleged wrongdoer. (Ibid.) In brief, the court must weigh the utility of
the defendant's conduct against the gravity of the harm to the alleged
victim. (Nolte, Supra, 236
Cal.App.4th at pp. 1407–1408; Cf. Durell v. Sharp Healthcare, supra, 183
Cal.App.4th at 1365 [“[u]nfair” business practices are those which offend an
“established public policy” that is tethered to “specific constitutional,
statutory, or regulatory provisions”]; Morgan v. AT & T Wireless
Services, Inc. (2009) 177 Cal.App.4th 1235, 1254–1255.)
Labor Code violations are actionable under the UCL. “[O]rders for payment of wages unlawfully
withheld from an employee are . . . a restitutionary remedy authorized by
section 17203.” (Cortez v.
Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 177.)
Plaintiff has established
commonality as to her overtime claim, her meal period claim, her wage statement
claims, and her failure to pay wages upon termination claim. As such, Plaintiff’s derivative UCL claim is
also susceptible to common proof.
IV.
Typicality
Plaintiff has established with substantial evidence that she has
satisfied the typicality requirement.
Defendant does not contest this issue.
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, supra, 91
Cal.App.4th at p.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.
(Seastrom v.
Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)
Here, Plaintiff’s and the putative
class members’ claims and injuries are based on the same legal theories and
arise out of Defendant’s unlawful policies and practices. (Kawata Decl. ¶¶ 2-8.) Plaintiff’s claims are therefore typical of
the putative class members’ claims.
V.
Adequacy of Representation
Plaintiff has established with
substantial evidence that she has satisfied the adequacy of representation
requirement. Defendant does not contest
this issue.
“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.) The
“adequacy of representation” requirement has not been precisely differentiated
from the typicality requirement. (Caro,
supra, 18 Cal.App.4th at p.670.)
Other cases have stated that adequacy of representation depends on
whether plaintiff’s attorney is qualified to conduct the proposed litigation
and plaintiff’s interests are not antagonistic to the interests of the
class. (McGhee v. Bank of America
(1976) 60 Cal.App.3d 442, 450.)
Plaintiff’s counsel has submitted a declaration attesting to their
experience and qualifications. (Yoon
Decl., ¶¶ 2–9; Kim Decl. ¶¶ 2-5.)
Plaintiff’s counsel appears qualified to conduct the proposed
litigation.
In addition, Plaintiff’s claims are typical of the class they seek to
represent because they have all been similarly injured by Defendant’s
conduct. (Kawata Decl. ¶¶ 2–8. Plaintiff is willing to act as class
representative, understands her fiduciary responsibility, and is committed to
actively participating in this case. (Kawata
Decl. ¶¶ 9–11.) There is no potential
conflict of interest, as Plaintiff and the putative class members all seek
similar relief. (Kawata Decl. ¶ 11.)
VI.
Superiority and Trial Plan
Plaintiff has failed to establish
with substantial evidence that a class action is superior to individual
lawsuits.
In deciding whether a class action
would be “superior” to individual lawsuits, a court will usually consider:
(1) The interest of each member in
controlling his or her own case personally;
(2) The difficulties, if any, that are likely
to be encountered in managing a class action;
(3) The nature and extent of any litigation
by individual class members already in progress involving the same controversy;
and
(4) the desirability of consolidating all
claims in a single action before a single court.
California Practice
Guide, Civil Procedure Before Trial (Rutter Group 2023), ¶ 14:16 (citing
Federal Rule of Civil Procedure 23(b)(3) (Rutter Guide); see also
Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 120; Newell
v. State Farm Gen. Insurance Co. (2004) 118 Cal.App.4th 1098, 1101; Lee
v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1333; Johnson v.
GlaxoSmith-Kline, Inc. (2008) 166 Cal.App.4th 1497, 1510; Ghazaryan v.
Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1537.
Under California law, a class action is not “superior” where there are
numerous and substantial questions affecting each class member’s right to
recover, following determination of liability to the class as a whole. (City of San Jose, supra, 12 Cal.3d at
p.459.)
In Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, the
California Supreme Court noted as follows:
If statistical evidence will comprise part of
the proof on class action claims, the court should consider at the
certification stage whether a trial plan has been developed to address its
use. A trial plan describing the
statistical proof a party anticipates will weigh in favor of granting class
certification if it shows how individual issues can be managed at trial. Rather than accepting assurances that a
statistical plan will eventually be developed, trial courts would be well
advised to obtain such a plan before deciding to certify a class action.
(Id. at pp.31–32
[emphasis in original].) Under Duran,
“[i]n 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.” (Id. at p.29
[italics added].)
Trial courts must pay careful attention to
manageability when deciding whether to certify a class action. In considering whether a class action is a
superior device for resolving a controversy, the manageability of individual
issues is just as important as the existence of common questions uniting the
proposed class. If the court makes a
reasoned, informed decision about manageability at the certification stage, the
litigants can plan accordingly and the court will have less need to intervene
later to control the proceedings.
(Ibid.)
Here, given the size of the putative classes and subclasses and the
well-defined community of interest, class treatment would be superior to
individual case-by-case resolution.
Individual suits are unlikely because such litigation will cost far more
than the relatively small value of the individual claims. For current employees, fear of retaliation
“is a justification for class certification in the arena of employment
litigation[.]” (Gentry v. Superior
Court (2007) 42 Cal.4th 443, 460, abrogation on other grounds recognized
by Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th
348, 360.) In addition, a class trial
will avoid the possibility of multiple actions challenging the same conduct,
conserving litigant and Court resources.
In addressing the “manageability” element under the superiority prong,
Plaintiff has submitted under separate cover a proposed trial plan. In the purported “trial plan”, Plaintiff lists
the five claims sought to be certified –
(1) failure to pay overtime wages; (2) failure to provide meal periods; (3)
failure to timely pay wages upon termination; (4) failure to provide accurate
wage statements; and (5) violation of Business and Professions Code §§ 17200 et
seq. – and provides a short description of relevant law to support the
basis of each claim. Plaintiff then
claims that “this action may be resolved by dispositive motion. Upon receiving
all relevant class member data, Plaintiff’s expert economist will be able to
determine damages according to each of Plaintiff’s theories of liability.
Unlike many cases, where liability can be determined by motion but damages
cannot, in this case both liability and damages are capable of determination by
summary judgment.” (Trial Plan at
p.4:21-25.) A plan to file a dispositive
motion is not a trial plan as it does not address trial at all.
There is no indication of how the trial is to be conducted in any
manner. Is there to be a bifurcation of
liability and then damages? How many witnesses are there proposed to
be? Moreover, there is no explanation as
to how any of the affirmative defenses that Defendant will likely bring can be
handled or addressed. For example, for
the meal period claims, if the rebuttable presumption of meal period violations
applies, how is Defendant going to present at trial the affirmative defense that
the meal periods were properly taken? Do
all 1,450 members of the putative Meal Period Class need to testify as to the
accuracy of every single meal period over the class period? If not, how can Defendant show perfect compliance
as Plaintiff claims must be shown? How
long would the trial be? What would the
proposed jury verdict questions be?
These questions are unanswered in the trial plan proposed by
Plaintiff. Moreover, there is no
indication of how affirmative defenses are going to be addressed or how
Defendant’s affirmative defenses can be manageable. The Supreme Court has explained “the court
must also conclude that litigation of individual issues, including those arising
from affirmative defenses, can be managed fairly and efficiently.” (Duran, supra, 59 Cal.4th at p.29,
[Bold and Italics added].) Plaintiff’s trial
plan of merely filing a dispositive motion does not address these defenses or
how they can be reasonably managed.
CONCLUSION AND ORDER
Based on
the foregoing, Plaintiff’s motion for class certification is DEFERRED AND
CONTINUED TO May 23, 2024.
The Court finds that Plaintiff has demonstrated with
substantial evidence that the elements for class certification are generally
satisfied, with the exception of the “manageability” component of the
superiority prong. The Court will DEFER
ruling on Plaintiff’s motion to allow Plaintiff to provide further briefing on
a more concrete trial plan. Plaintiff
must submit a supplemental brief no later than ___ days from today. The hearing
on Plaintiff’s motion for class certification is CONTINUED TO May 23, 2024 at
10:00 am.
The
Court’s Judicial Assistant is to give notice to all parties.
DATED: April 3, 2024
_________________________
Elaine
Lu
Los
Angeles Superior Court