Carlos Villacres v. ABM Industries Incorporated et al

Filing 85

ORDER DENYING PLAINTIFF'S RENEWED MOTION FOR CLASS CERTIFICATION by Judge Virginia A. Phillips: The Court DENIES the Motion. (am)

1 2 3 4 5 6 7 8 9 10 11 CARLOS VILLACRES, individually, and on 12 behalf of other members of the general public 13 similarly situated, 14 15 16 17 18 19 20 21 22 23 24 Plaintiff Carlos Villacres' ("Plaintiff") Renewed After reviewing 25 Motion for Class Certification ("Motion") came before the 26 Court for hearing on January 12, 2009. 27 and considering all papers filed in support of, and in 28 opposition to, the Motion, as well as the arguments ) ) ) ) ) ) Plaintiff, ) ) v. ) ) ABM INDUSTRIES ) INCORPORATED, a Delaware ) corporation; ABM ) SECURITY SERVICES, INC., ) a California ) corporation; SECURITY ) SERVICES AMERICA, INC., ) a California ) corporation; and DOES 1 ) through 10, inclusive, ) ) Defendants. ) ________________________ ) Case No. CV 07-5327-VAP (AGRx) [Motion filed on November 3, 2008 ] ORDER DENYING PLAINTIFF'S RENEWED MOTION FOR CLASS CERTIFICATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

1 advanced by counsel at the hearing, the Court DENIES the 2 Motion. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. I. BACKGROUND California Labor Code section 226 The instant Motion concerns claims brought under California Labor Code section 226. pertinent part: (a) Every employer shall . . . furnish each of his or her employees . . . an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee . . (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. . . (e) An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars
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This provides in

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($4,000), and is entitled to an award of costs and reasonable attorney's fees. Procedural History 1. Complaints Plaintiff filed a Complaint on August 15, 2007, on behalf of a putative class of employees of defendants ABM Industries Incorporated, ABM Security Services, Inc., and Security Services America, Inc. ("Defendants.") Plaintiff filed a First Amended Complaint on September 26, 2007, alleging violations of California statutes, including provisions governing the payment of wages and appropriate meal and rest periods. Plaintiff lodged a proposed Second Amended Complaint ("SAC") on February 1, 2008 and the Court granted Plaintiff leave to file a SAC in a Minute Order dated April 24, 2008 ("April 24 Minute Order"). Defendant answered the Second Amended Complaint on May 19, 2008. 2. First Motion for class certification After

On December 17, 2007, Plaintiff filed a Motion for Class Certification and Appointment of Counsel. various proceedings, the Court confirmed jurisdiction. It then issued a Minute Order on February 26, 2008, setting forth the basis for its tentative ruling that class certification would be appropriate under Rule 23(b)(3) of the Federal Rules of Civil Procedure.
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In the April 24

1 Minute Order, the Court granted (1) Plaintiff's Motion 2 for leave to file a Second Amended Complaint stating only 3 a wage statement claim and (2) Plaintiff's Motion to 4 certify a class of employees. 5 6 7 3. Motion for reconsideration Defendants filed a motion on May 8, 2008, seeking

8 reconsideration of the Court's class certification order 9 and requesting a stay of class notice pending 10 consideration of jurisdiction. In a July 1, 2008 Order, 11 the Court granted Defendants' Motion for reconsideration 12 of the court's class certification order ("July 1 13 Order"). 14 15 In the July 1 Order, the Court distinguished 16 Plaintiff's claims from those brought by "class members 17 in Wang and Cicairos" in that Plaintiff alleged only that 18 he 19 20 21 22 23 24 25 26 27 28 received inaccurate wage statements. . . Since Plaintiff and his fellow class members do not challenge the amounts of their pay and do not otherwise have to reconstruct their pay records for purposes of this litigation, they do not appear to have a basis for alleging the type of injury under section 226(e) recognized by courts. Nevertheless, it is possible that Plaintiff can make some initial showing concerning injury, e.g., that he dropped his related wage and hour claims because the alleged failure to provide accurate wage statements hampered his pursuit of those related claims. Accordingly, the
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Court finds that further briefing on the issue of the class members' injury is necessary to determine whether such injury is disproportionately small compared with the available statutory penalty. The parties also may further brief the issue of whether Plaintiff must make some showing of injury to the class as a result of the alleged violation of Labor Code section 226(e).

7 (July 1 Order at 9-10.) When granting Defendants' Motion for reconsideration,

10 the Court rejected "Plaintiff's contention that the mere 11 failure to provide an accurate wage statement results in 12 actual injury" of the kind recognized by courts. (July 1 13 Order 9, 10 n. 1.) 14 15 16 4. Renewed Motion for class certification Defendants filed their Opposition Now before the Court is Plaintiff's Motion filed

17 November 3, 2008. 19 objections.

18 ("Opp'n") on November 24, 2008, as well as comprehensive Plaintiff filed his Reply on December 8, The 20 2008, with opposition to Defendants' objections.

21 Court overrules all objections as moot, as they pertain 22 to material the Court did not consider in reaching its 23 decision. 24 25 Plaintiff does not provide a definition of the The Court assumes Plaintiff seeks to 26 proposed class. 28
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27 certify the following class: "all non-exempt security

1 guards employed by Defendants from August 15, 2006 to the 2 present" who received inaccurate wage statements. 3 April 24 Minute Order.) 4 5 6 A. 7 II. DISCUSSION Scope of Requested Briefing In the Court's July 1 Order, the Court noted it was (See

8 "not persuaded by Plaintiff's contention that the mere 9 failure to provide an accurate wage statement results in 10 actual injury." (July 1 Order 10 n. 1.) Nevertheless, 11 the Court allowed it was "possible that Plaintiff can 12 make some initial showing concerning injury, e.g., that 13 he dropped his related wage and hour claims because the 14 alleged failure to provide accurate wage statements 15 hampered his pursuit of those related claims." 16 Accordingly, the Court directed briefing on (1) "the 17 issue of the class members' injury . . . to determine 18 whether such injury is disproportionately small compared 19 with the available statutory penalty" and (2) "whether 20 Plaintiff must make some showing of injury to the class 21 as a result of the alleged violation of Labor Code 22 section 226(e)." 23 24 In his Motion, Plaintiff, however, re-argues the Plaintiff's Motion states 25 motion for reconsideration. (July 1 Order 9-10.)

26 the Court requested information about whether: "(1) . . . 27 this Court [could] certify a penalty only class action; 28
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1 and (2) must Plaintiff show actual damages to certify 2 under California Labor Code section 226." 3 25.) 1 Plaintiff is mistaken. (Mot. 4:21The Court's July 1 Order

4 clearly rejected Plaintiff's theory that provision of 5 inaccurate wage statements without a showing of actual 6 injury stated a claim under California Labor Code section 7 226. 8 9 B. 10 Plaintiff's Showing In his Motion, Plaintiff fails to make the required (July 1 Order 9-10.) He does (July 1 Order 9.)

11 showing concerning injury.

12 not explain how the allegedly inaccurate wage statements 13 changed his prosecution of other claims; nor does he 14 otherwise allege actual injury. For example, Plaintiff 15 avers the proposed class satisfies the commonality 16 requirement of Rule 23(a) of the Federal Rule of Civil 17 Procedure because "the wage statements issued by 18 Defendant: (1) do not show the total sum of hours worked; 19 (2) do not show the inclusive dates of pay; and (3) do 20 not show the legal entity that was the employer." 21 19:17-19.) (Mot. Likewise, Plaintiff argues a class action is

22 the superior way to adjudicate the dispute because the 23 "deficiencies identified by Plaintiff were common to all 24 putative class members." 25 26 Accordingly, much of Plaintiff's Motion addresses issues not now before the Court, such as the meaning of 27 "injury" under California Labor Code section 226. (See 28 Mot. 10- 17.)
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(Mot. 22:12-13.)

Plaintiff

1 does not aver class members suffered common actual 2 injuries stemming from the alleged deficiencies. 3 4 As Plaintiff presents no facts showing actual injury, 5 the Court concludes he does not "have a basis for 6 alleging the type of injury under section 226(e) 7 recognized by courts." 9 class. 11 Motion. 12 13 14 15 16 17 18 Dated: January 14, 2009 19 20 21 22 23 24 25 26 27 28
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(See July 1 Order 9.)

The Court

8 also finds Plaintiff fails to show actual injury to the (See July 1 Order 10.) Accordingly, the Court 10 DENIES the request to certify the class and DENIES the

III.

CONCLUSION

The Court DENIES the Motion.

VIRGINIA A. PHILLIPS United States District Judge