Sharon Pole v. Estenson Logistics, LLC
Filing
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ORDER GRANTING MOTION FOR CLASS CERTIFICATION 15 by Judge Dean D. Pregerson. (lc). Modified on 8/10/2016 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SHARON POLE, individually,
and on behalf of other
members of the putative
class, and on behalf of
aggrieved employees pursuant
to the Private Attorney
General Act (“PAGA”),
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Plaintiff,
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v.
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ESTENSON LOGISTICS, LLC, a
Nevada limited liability
company,
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Defendants.
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Case No. CV 15-07196 DDP (Ex)
ORDER GRANTING MOTION FOR CLASS
CERTIFICATION
[Dkt. No. 15]
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Presently before the Court is Plaintiff Sharon Pole’s Motion
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for Class Certification. (Dkt. 15.) After considering the parties’
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submissions and hearing oral argument, the Court adopts the
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following Order.
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I.
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BACKGROUND
This case arises out of an employee classification dispute
between Plaintiff Sharon Pole and her former employer, Defendant
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Estenson Logistics, LLC (“Estenson”). Estenson is a third-party
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trucking company that moves product for its customers from
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distribution centers to retail stores located in California.
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(Plaintiff’s Appendix of Evidence (“PA”) 6-7 (Deposition of
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Michelle Alexander 12:2-15:5).) Plaintiff was formerly employed by
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Estenson as a “Fleet Manager.” (Complaint ¶ 14.) Plaintiff brings
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this action on the grounds that Estenson misclassified her as an
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“exempt” employee and paid her on a salary basis, without any
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compensation for overtime hours worked and missed meal periods or
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rest breaks. (Id. ¶ 15.)
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In the present motion, Plaintiff seeks to certify the
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following class under Federal Rule of Civil Procedure 23(b)(3):
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All current and former California-based salaried “Fleet
Managers,” or persons who held similar job titles and/or
performed similar job duties, who worked for Estenson
within the State of California from September 6, 2010 to
final judgment.
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(Motion for Class Certification (“Mot.”) 1.) The gravamen of
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Plaintiff’s class certification theory is that “Estenson
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misclassified her and other Fleet Managers as exempt because their
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job duties fail to satisfy any of the requirements for the
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executive or administrative exemptions.” (Id. 1.)
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A.
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Estenson operates out of approximately forty-six distribution
Estenson’s Operation
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centers in California, some of which operate 24 hours a day.
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(Declaration of Michelle Alexander ¶ 2; Alexander Dep. 26:10-17.)
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Each location is overseen by a single Site Manager. (Alexander Dep.
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89:21-24.) The site mangers are “ultimately . . . responsible for
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the operations of each facility.” Each facility also employs
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administrative staff, drivers, and yard hostlers. (Id. 23:21-24:5.)
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At eleven of these facilities, Estenson employs “Fleet Managers.”
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(Id. 15:16-16:3.) These facilities are located across California.
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(Id. 18:7-19 (noting facilities from Redlands, CA in the south to
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Tracy, CA in the north).) Based on the size of operations, a
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location can have anywhere from one to five Fleet Managers employed
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at any given time. (Alexander Decl. ¶ 4.) During her employment,
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Plaintiff was one of two Fleet Managers at the Lathrop, CA
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location. (Plaintiff’s Dep. 73:10-11.)
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B.
Fleet Manager’s Responsibilities
According to Estenson’s 2013 Fleet Manager job description,
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the position’s responsibilities include ensuring loads are
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delivered on time, investigating complaints, ensuring company
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safety policies are understood, assisting in safety inspections and
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trainings, and filing paperwork generated by shipping activities.
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(See PA 140-141.) Other versions of the job description include
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tasks such as enforcing rules and company policies, ensuring safety
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and compliance, internal and external customer service, HR related
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tasks like hiring and training, scheduling, billing, complying with
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reporting requirements, and assisting the site manager. (See PA
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135-138.) Estenson has confirmed that these job duties apply to all
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Fleet Managers and are not site-specific. (Alexander Dep. 58:4-8.)
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Plaintiff asserts that, on a day-to-day basis, Fleet Managers
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are primarily responsible for dispatching truck drivers, data
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entry, and taking calls. (PA 190 (Allen Decl. ¶ 4.); PA 193-14
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(Dorado Decl. ¶ 6); PA 196 (Elliot Decl. ¶ 5); PA 199-200 (Jones
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Decl. ¶ 6); PA 202 (Taylor Decl. ¶ 5); PA 205 (Thompson Decl. ¶
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5.).) Fleet Managers create “route packets” based on a load
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planners assessment of how to arrange a customer’s delivery
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requests and give these packets to drivers, along with their keys.
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(Alexander Dep. 26:22-27:24; 61:18-64:25.) Fleet Managers also
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collect paperwork submitted by truck drivers and input into
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Estenson’s computer system. (Alexander Dep. 73:16-24.) Furthermore,
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Fleet Managers handle all in-bound truck driver calls, including
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accident and maintenance reports. (Alexander Dep. 199:5-7; 92:5-
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97:6.) Some Fleet Managers were also given a “checklist” that
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memorializes many of these duties. (PA 143-44; PA 101-02 (Towell
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Depo. 75:6-76:2.)
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Estenson elaborates on this account of a Fleet Manager’s
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duties by noting additional responsibilities. For example, Estenson
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describes the specific considerations a Fleet Manager might accoutn
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for when deciding how to assign a particular driver to a delivery
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route. (Alexander Dep. 36:6-37:9; 46:16-19.) Estenson also notes
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the various responsibilities involved in responding to customer
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complaints or handling other customer inquiries. (Suarez Decl. ¶¶
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10-11.) While Estenson describes some commonalities in the Fleet
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Manager role, it also elaborates on the differences. For instance,
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Estenson explains that larger facilities with more drivers have
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divided responsibilities among multiple Fleet Managers--with some
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handling loan planning and billing and others focusing on driver
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communications--while smaller facilities will have only a single
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Fleet Manager who is responsible for a broader range of
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responsibilities. (Towell Dep. 76:3-77:14.)
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C.
Classification of Fleet Managers as Exempt
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The basis of Plaintiff’s suit is that Estenson misclassifies
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its Fleet Managers as exempt. (Alexander Dep. 28:4-12.) As exempt
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employees, Estenson does not pay overtime to its Fleet Managers
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when they work longer than eight hours a day or forty hours a week.
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(Alexander Dep. 122:13-124:1.) Estenson also does not provide its
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Fleet Managers with meal and rest breaks. (Towell Dep. 59:22-60:3.)
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According to Plaintiff, Fleet Managers routinely work longer than
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eight hours and did not take lunch or rest breaks. (Towell Dep.
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21:4-12; PA 191 (Allen Decl. ¶ 7); PA 194 (Dorado
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Decl. ¶ 9); PA 118 (Pole Dep. 104:1-18); PA 191 (Allen Decl. ¶
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8.).) Defendants acknowledge that Fleet Managers are not entitled
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to overtime and do not receive scheduled meal and rest breaks but
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submit evidence that some Fleet Managers have taken lunch breaks.
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(Suarez Decl. ¶ 15; Towell Dep. 64:9-20.)
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II.
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LEGAL STANDARD
The party seeking class certification bears the burden of
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showing that each of the four requirements of Rule 23(a) and at
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least one of the requirements of Rule 23(b) are met. See Meyer v.
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Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir.
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2012); Hanon v. Dataprods. Corp., 976 F.2d 497, 508-09 (9th Cir.
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1992). In determining whether to certify a class, a court must
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conduct a “rigorous analysis” to determine whether the party
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seeking certification has met the prerequisites of Rule 23 of the
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Federal Rules of Civil Procedure. Valentino v. Carter-Wallace,
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Inc., 97 F.3d 1227, 1233 (9th Cir. 1996). Rule 23(a) sets forth
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four prerequisites for class certification:
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(1)
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(2)
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(3)
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(4)
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the class is so numerous that joinder of all members
is impracticable;
there are questions of law or fact common to the
class;
the claims or defenses of the representative parties
are typical of the claims or defenses of the class;
and
the representative parties will fairly and adequately
protect the interests of the class.
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Fed. R. Civ. P. 23(a); see also Hanon, 976 F.2d at 508.
These
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four requirements are often referred to as (1) numerosity, (2)
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commonality, (3) typicality, and (4) adequacy. See General Tel.
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Co. v. Falcon, 457 U.S. 147, 156 (1982).
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In determining the propriety of a class action, the question
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is not whether the plaintiff has stated a cause of action or will
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prevail on the merits, but rather whether the requirements of Rule
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23 are met. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178
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(1974). This Court, therefore, considers the merits of the
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underlying claim to the extent that the merits overlap with the
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Rule 23(a) requirements, but will not conduct a “mini-trial” or
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determine at this stage whether Plaintiffs could actually prevail.
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Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981, 983 n.8 (9th
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Cir. 2011); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
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131 S. Ct. 2541, 2551-52 (2011).
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Rule 23(b) defines different types of classes. Leyva v.
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Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2012). Relevant
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here, Rule 23(b)(3) requires that “questions of law or fact common
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to class members predominate over individual questions . . . and
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that a class action is superior to other available methods for
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fairly and efficiently adjudicating the controversy.” Fed. R. Civ.
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P. 23(b)(3).
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III. DISCUSSION
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A.
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To show that class certification is warranted, Plaintiffs
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must show that all four prerequisites listed in Rule 23(a) are
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satisfied.
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Rule 23(a) Prerequisites
1.
Numerosity
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Numerosity is satisfied if “the class is so numerous that
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joinder of all members is impracticable.” Fed. R. Civ. P.
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23(a)(1). The Ninth Circuit has elaborated that impracticable is
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not the same as impossible but instead asks courts to determine
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whether “potential class members would suffer a strong litigation
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hardship or inconvenience if joinder were required.” Rannis v.
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Recchia, 380 F. App’x 646, 650–51 (9th Cir. 2010) (citing Harris
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v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th
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Cir.1964)). The “numerosity requirement requires examination of
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the specific facts of each case and imposes no absolute
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limitations.” Gen. Tel. Co. of the Nw. v. Equal Employment
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Opportunity Comm’n, 446 U.S. 318, 330 (1980). The Ninth Circuit
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has typically required at least fifteen members to certify a
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class, Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir.
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2003), and has usually held classes of forty members or more
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satisfy numerosity, Rannis, 380 F. App’x 651.
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Plaintiff’s Motion for Class Certification states that the
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putative class includes approximately “45 Fleet Managers.” (Mot.
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11.) Both Estenson’s Opposition to the Motion for Class
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Certification and Plaintiff’s Reply note that there are 55
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potential class members. (Opp’n 11; Reply 15.) On these
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representations, the court would be inclined to find the
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numerosity requirement satisfied. Since the completion of
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briefing, however, Estenson has submitted a Notice of Newly
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Acquired Facts stating that thirty-four current Fleet Managers and
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nine former employees have executed release agreements for all
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claims at issue, leaving “only 17 former employees” in the
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putative class. (Notice of Newly Acquired Facts ¶ 1.) Estenson did
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not provide a copy of the release.
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Plaintiff challenges the legal effect and enforceability of
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these undisclosed releases. (Plaintiff’s Response to Defendant’s
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Newly Acquired Facts ¶ 1.) According to Plaintiff, the releases
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must be deemed invalid because they purportedly include a release
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of the Private Attorney General Act (PAGA) claims, which requires
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court approval. See Cal. Lab. Code § 2699(l)(2). Plaintiff also
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contends that even if the releases exist and are valid, they do
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not alter the class certification analysis because they only
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release claims that pre-date the release. (Id. ¶ 3 (citing
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Alexander Dep. 63:18-25, attached to Plaintiff’s Response to
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Defendant’s Newly Acquired Facts.) At bottom, Plaintiff’s theory
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of class certification is that Estenson misclassifies Fleet
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Managers as exempt, and therefore improperly denies them mandated
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overtime pay and breaks. Even if a current employee released their
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prior claims, Plaintiff contends that these employees are still
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misclassified and continue suffer the resulting harms in the
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course of their employment. Because Plaintiff seeks to certify a
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class of all Fleet Managers “who worked for Estenson within the
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State of California from September 6, 2010 to final judgment,”
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Plaintiff believes these current employees should still be
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considered part of the class. (Mot. 1.)
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Without knowing the specifics of the release, the court
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cannot conclusively determine the validity of the releases. For
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instance, the court cannot determine if the releases were invalid
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under California Labor Code section 206.5(a), which prohibits an
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employer from conditioning wages due on the execution of a
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release. Likewise, Plaintiff correctly notes that a release of
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PAGA claims requires court approval but the implications of that
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are less apparent for the class certification motion. While
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individuals cannot release an employer from liability to the
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state, individuals can waive their own right to bring PAGA claims.
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See Waisbein v. UBS Financial Services Inc., No. C-07-2328 MMC,
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2007 WL 4287334, at *3 (C.D. Cal. Dec. 5, 2007). In the instance
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case, the PAGA waiver may not have any impact on class
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certification because Plaintiff does not claim to bring the PAGA
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claims as a class action. To the contrary, she expressly states in
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her class certification motion that she is bringing the PAGA claim
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as a representative action that does not require class
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certification. (Mot. 1.) Thus, the only filed PAGA claim at this
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juncture–and thus the only PAGA settlement that might require
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court approval–is Plaintiff’s representative claim against
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Estenson. There is no reason to believe that the releases attempt
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to waive Plaintiff’s right to pursue her PAGA action.
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Even assuming the validity of the releases, however, the
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putative class still meets the numerosity requirement because
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there are more than forty members to pursue the misclassification
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claim. While the precise number of class members has fluctuated
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across the parties’ various filing, the last count from Defendant
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asserts that there are “thirty-four (34) putative class members
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who are current employees” and “seventeen (17) former employee[s]
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. . . who have not executed binding settlement agreements with
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Estenson.” (Notice of Newly Acquired Facts ¶ 1.) Thus, there are
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at least fifty-one individual with a potential misclassification
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claim against Estenson who are eligible to participate in the
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putative class action. As Defendant’s notice acknowledges, “the
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thirty-four current employees who executed release agreements are
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now barred from pursuing claims for damages that pre-date the date
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on which they signed the agreements . . . .” (Id. (emphasis
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added).)
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At least one California court has confronted precisely this
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issue when evaluating the effect of a release where employees
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released their employer “from all claims for unpaid overtime and
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any other Labor Code violations,” agreed “not to participate in
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any class action that may include . . . any of the released
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Claims,” and acknowledged that “he or she had spent more than 50%
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of the time performing managerial duties.” Chindarah v. Pick Up
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Stix, Inc., 171 Cal. App. 4th 796, 798 (2009). In that case, the
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court upheld that validity of the release because the class action
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only concerned past unpaid overtime and the release “did not
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purport to exonerate [the employer] from future violations.” This
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distinction is critical because under California law, “the
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statutory right to receive overtime pay embodied in section 1194
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is unwaivable.” Gentry v. Superior Court, 42 Cal. 4th 443, 456
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(2007) abrogation on other grounds recognized by Iskanian v. CLS
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Transp. Los Angeles, LLC, 59 Cal. 4th 348, 366 (2014). Here, where
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the purported class claim includes allegations of an ongoing
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misclassification violation, any release by current employees of
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past claims does not exclude these individuals from participating
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in a class seeking to correct the misclassification.
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With approximately fifty-one class members, the court
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concludes that the numerosity requirement is met. Out of an
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abundance of caution, however, the court proceeds to consider
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whether even a seventeen-member class would meet the numerosity
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requirement in this case.1 As noted aboved, the “specific facts of
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each case must be examined to determine if impracticability
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exists.” Haley v. Medtronic, Inc., 169 F.R.D. 643, 647 (C.D. Cal.
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1996). In determining whether the requisite numerosity exists in
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cases where the class number is not great, courts consider “the
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geographical diversity of class members, the ability of individual
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claimants to institute separate suits, and whether injunctive or
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declaratory relief is sought.” Jordan v. Los Angeles Cty., 669
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F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459
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U.S. 810 (1982).
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(a) Geographical Diversity
There is “no per se rule on the number of widely dispersed
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plaintiffs necessary to support a finding of numerosity.”
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McCluskey v. Trustees of Red Dot Corp. Employee Stock Ownership
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Plan & Trust, 268 F.R.D. 670, 675 (W.D. Wash. 2010).
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found that the numerosity requirement was met where plaintiffs
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were merely dispersed across counties within the same state.
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(citing Novella v. Westchester County, 443 F.Supp.2d 540, 546
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(S.D. N.Y., 2006)); see also Brink v. First Credit Resources, 185
Courts have
Id.
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The court undertakes this inquiry both because, without
knowing the specific language of the release, it may emerge that
the release is more expansive than currently assumed and in the
event that additional releases further alter the numerical
composition of the class. In the event that additional releases are
secured, district courts have found a “duty to supervise
communications with potential class members exists even before a
class is certified” if it is required to ensure “‘the fairness of
the litigation process, the adequacy of representation, and the
administration of justice generally.’” Cheverez v. Plains all Am.
Pipeline, LP, No. CV 15-4113 PSG (JEMx), 2016 WL 861107, at *2
(C.D. Cal. Mar. 3, 2016) (quoting In re Oil Spill by the Oil Rig
‘Deepwater Horizon’ in the Gulf of Mexico on Apr. 20, 2010, No.
10-md-02179, 2011 WL 323866, at *2. (E.D. La. Feb. 2, 2011)).
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F.R.D. 567, 570 (D. Ariz. 1999) (holding that the joinder was
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impractical partially because class members are located throughout
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the state of Arizona). Similar to the facts at issue here, the
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court in Agauyo v. Oldenkamp Trucking held that joinder of the
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proposed class of 34 was impractical because “[t]he plaintiffs are
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truck drivers who likely live near both . . . Bakersfield, which
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is within this District, and near Ontario, which is outside this
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district[.]”
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*12 (E.D. Cal., October 3, 2005).
Aguayo v. Oldenkamp Trucking, 2005 WL 2436477, at
Consequently, “[i]t would
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likely be difficult for individuals to prosecute in this distant
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forum.”
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F.R.D. 549, 562 (N.D. Cal. 2015) (holding that numerosity was not
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met where the proposed class had only seventeen members who were
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all working in the San Francisco Bay Area).
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Id.; but see Sandoval v. M1 Auto Collisions Centers, 309
In the present case, Fleet Managers are employed in at least
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the following California cities: Lathrop, Tracy, Bakersfield,
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Fremont, Mira Loma, Ontario, Redland, La Mirada, and Fontana.
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(Alexander Dep. 18:10-15.) Assuming that the release of claims did
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not result in the remaining putative class members all being
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located in the same or nearby cities, the court finds that the
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geographical diversity factor counsels in favor of meeting the
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numerosity requirement.
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(b) Ability to Bring Suit Separately
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The ability of individual class members to bring suit
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individually can make joinder impractical when potential class
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members lack the financial resources to file individual suits.
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McCluskey, 268 F.R.D. at 675. Putative class members are less able
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to bring their claims individually when their claims are
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relatively small, making it unlikely that the individual would
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pursue relief absent class certification.
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Services, Inc., 310 F.R.D. 593, 603 (E.D. Cal. 2015); see also
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Chastain v. Cam, 2016 WL 1572542, at *1 (D. Ore. April 19, 2016)
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(holding that joinder is impractical in part because “Plaintiffs
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allege small amounts of individual damages for unpaid breaks”).
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Individual class members are also unlikely to sue independently
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when they face fear or retaliation from an employer. See Buttino,
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1992 WL 12013803, at *2 (holding that numerosity was satisfied in
Millan v. Cascade Water
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part because “many individual claimants would have difficulty
11
filing individual lawsuits out of fear of retaliation, exposure,
12
and/or prejudice, such that it is unlikely that individual class
13
members would institute separate suits”); see also Aguayo, 2005 WL
14
2435477, at *12 (citing Mullen v. Treasure Chest Casino, LLC, 186
15
F.3d 620, 625 (5th Cir. 1999)) (noting that “some of the potential
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class members are still employed with defendant and are unlikely
17
to institute action against their employer”).
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Here, where some potential class members are still employed
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by Estenson and where the claims are for foregone overtime and
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breaks, the court finds that ability to individually bring suit
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counsels in favor of finding numerosity.
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(c) Relief Sought
The numerosity requirement is “relaxed” when injunctive or
24
declaratory relief is sought. Sueoka v. U.S., 2004 WL 1042541, at
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*2 (9th Cir., May 5, 2004).
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relief sought necessarily implicates judicial economy where a
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judgment granting an injunction would avoid duplicative suits
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brought by other class members.
This is largely because the type of
See Escalante v. California
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1
Physicians’ Service, 309 F.R.D. 612, 618 (finding that a class of
2
19 is still sufficiently numerous because “Plaintiff in this case
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is requesting declaratory and injunctive relief” and because
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“allowing a class action to be brought would be in the interests
5
of judicial economy”). While there may ultimately be some
6
individualized damage calculations, this putative class includes
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claims for both injunctive and declaratory relief. Given the facts
8
presented in this case, it would be inefficient and unduly burden
9
the court’s docket to require each individual Fleet Manager to
10
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separately litigate their misclassification claim.
Evaluating the numerosity factors as a whole, and bearing in
12
mind considerations of judicial economy, Plaintiff’s putative
13
class satisfies the numerosity requirement.
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2.
Commonality
Commonality is satisfied if “there are questions of law or
16
fact common to the class.” Fed. R. Civ. P. 23(a)(2). Note that
17
this does not mean that all questions of law and fact must be
18
identical across the class; “[t]he requirements of Rule 23(a)(2)
19
have been construed permissively, and all questions of fact and
20
law need not be common to satisfy the rule.” Ellis v. Costco
21
Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (internal
22
quotation marks and brackets omitted). However, posing common
23
questions of trivial fact is not enough: the “question” must be
24
one that “will generate common answers apt to drive the resolution
25
of the litigation.”
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2541, 2551 (2011).
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28
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
The common question raised by Plaintiff’s potential class is
whether Estenson properly classified Fleet Managers as exempt
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1
employees, and thus was not required to pay overtime or schedule
2
meal and rest breaks. According to Plaintiff, the commonality
3
requirement is met because the evidence demonstrates that Estenson
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did not meet any of the requirements of invoking either the
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administrative or executive exemption. (Mot. 20.)
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Under California law, an individual “employed in the
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transportation industry” qualifies as exempt if the following
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criteria are met:
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(1) Executive Exemption A person employed in an executive
capacity means any employee:
(a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is
employed or of a customarily recognized department or
subdivision thereof; and
(b) Who customarily and regularly directs the work of
two or more other employees therein; and
(c) Who has the authority to hire or fire other
employees or whose suggestions and recommendations as
to the hiring or firing and as to the advancement and
promotion or any other change of status of other
employees will be given particular weight; and
(d)
Who
customarily
and
regularly
exercises
discretion and independent judgment; and
(e) Who is primarily engaged in duties which meet the
test of the exemption. . . .
(2) Administrative Exemption A person employed in an
administrative capacity means any employee:
(a) Whose duties and responsibilities involve either:
(i) The performance of office or non-manual work
directly related to management policies or
general business operations of his employer or
his/her employer's customers; or
(ii) The performance of functions in the
administration
of
a
school
system,
or
educational establishment or institution, or of
a department or subdivision thereof, in work
directly related to the academic instruction or
training carried on therein; and
(b)
Who
customarily
and
regularly
exercises
discretion and independent judgment; and
(c) Who regularly and directly assists a proprietor,
or an employee employed in a bona fide executive or
administrative capacity
(d) Who performs under only general supervision work
along specialized or technical lines requiring
special training, experience, or knowledge; or
28
15
1
2
(e) Who executes under only general supervision
special assignments and tasks; and
(f) Who is primarily engaged in duties that meet the
test of the exemption. . . .
3
Cal. Code Regs. tit. 8, § 11090. Plaintiff argues that Estenson’s
4
Fleet Managers do not satisfy any of the requirements for invoking
5
an exemption but this is a greater burden than Plaintiff needs to
6
take on to demonstrate commonality. The statutory test for
7
invoking an exemption is conjunctive. Thus, if Plaintiff can
8
demonstrate that all Fleet Managers do not engage in any one of
9
the required duties under each exception or that they are not
10
primarily engaged in such duties, she will have supplied a common
11
answer that will drive the resolution of this litigation.
12
Between Estenson’s uniform job description of the Fleet
13
Manager position and the testimony of Estenson’s Rule 30(b)(6)
14
witness that Estenson expects its Fleet Managers to perform the
15
same duties regardless of their employment location, Plaintiff
16
argues that commonality is satisfied. (Alexander Dep. 57:11-25;
17
58:4-8.) Defendant responds that even if a group of employees are
18
tasked with the same duties, questions about how each employee
19
performs their duty may preclude class certification in the
20
exemption classification context. (Opp’n 18-20.) In support,
21
Estenson relies on Fjeld v. Penske Logistics, LLC, No. CV
22
12-3500-GHK JCGX, 2013 WL 8360535 (C.D. Cal. Aug. 9, 2013). In
23
Fjeld, the court considered whether to certify a class of
24
Operations Supervisors who spent the majority of their time
25
“assign[ing] drivers and trucks to routes to make [timely]
26
deliveries based upon customer needs.” Id. at *5. The court
27
determined that resolution of the exemption claim turned on
28
16
1
whether this task required discretion and independent judgement.
2
Id. (“For there to be classwide answers on whether the relevant
3
tasks are exempt, Plaintiff must make a threshold showing that the
4
putative class members are preforming the tasks in a substantially
5
similar manner, e.g., by taking into account a similar set of
6
factors.”). In the absence of any evidence about how any potential
7
class members other than the plaintiff performed this task, the
8
court found that putative class did not meet the burden of
9
demonstrating commonality.
10
In the Reply, Plaintiff argues that Fjeld does not resolve
11
her certification claim because she submitted evidence about the
12
factors Fleet Managers must rely on to complete the tasks Estenson
13
posits are discretionary. (Reply 18-21.) With regard to assigning
14
drivers to routes, Plaintiff has submitted evidence that a
15
computer program decides whether a driver can be assigned to a
16
route. (Suarez Dep. at 170:8–171:10.) Likewise, with regard to
17
managing truck breakdowns, Plaintiff has submitted evidence that
18
Fleet Managers call a tow truck from a pre-approved list of
19
vendors and follow the instructions of the maintenance
20
coordinator. (Suraez Dep. 127:9-128:1.) According to Plaintiffs,
21
any choice a Fleet Manager must make are highly structured and
22
largely predetermined.
23
While there appears to be some variation in the tasks
24
individual Fleet Managers perform, there is also substantial
25
commonality in the tasks Fleet Managers are expected to perform
26
according to both job descriptions issued by Estenson and the
27
individual testimony submitted before the court. Determining
28
whether these tasks satisfy the requirements for classifying an
17
1
employee as exempt under California law is the sort of question
2
amenable to classwide resolution and adequate to satisfy the
3
commonality requirement under Rule 23(a)(2).
4
5
3.
Typicality
Typicality is satisfied if “the claims or defenses of the
6
representative parties are typical of the claims or defenses of
7
the class.”
8
typicality requirement is to assure that the interest of the named
9
representative aligns with the interests of the class. Typicality
Fed. R. Civ. P. 23(a)(3). “The purpose of the
10
refers to the nature of the claim or defense of the class
11
representative, and not to the specific facts from which it arose
12
or the relief sought. The test of typicality is whether other
13
members have the same or similar injury . . . .”
14
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal
15
quotation marks omitted) (citations omitted) (emphasis added).
16
Hanon v.
Plaintiff argues that her claims are typical in that they are
17
premised on her employment as a Fleet Manager and that there are
18
no defenses unique to her case. Defendants do not expressly
19
challenge this claim. Perhaps Defendants’ argument that
20
commonality is not satisfied because different Fleet Managers have
21
different responsibilities can be understood to also challenge the
22
typicality of Plaintiff’s claims. But the court has already
23
determined that different Fleet Managers do not appear to have
24
such distinct responsibilities that their classification does not
25
present a common question of law. The court cannot find any
26
additional reason to doubt the typicality of Plaintiff’s claims.
27
Thus, the court concludes that typicality is satisfied.
28
18
1
4.
2
Adequacy
Adequacy of representation is satisfied if “the
3
representative parties will fairly and adequately protect the
4
interests of the class.” Fed. R. Civ. P. 23(a)(4). Inasmuch as it
5
is conceptually distinct from commonality and typicality, this
6
prerequisite is primarily concerned with “the competency of class
7
counsel and conflicts of interest.” Gen. Tel. Co. of Southwest v.
8
Falcon, 457 U.S. 147, 158 n.13 (1982). Thus, “courts must resolve
9
two questions: (1) do the named plaintiffs and their counsel have
10
any conflicts of interest with other class members and (2) will
11
the named plaintiffs and their counsel prosecute the action
12
vigorously on behalf of the class?” Ellis, 657 F.3d at 985. In
13
this case, there is no dispute over this requirement.
14
B.
15
A class action may be certified under Rule 23(b)(3) if “the
Rule 23(b)(3)
16
questions of law or fact common to class members predominate over
17
any questions affecting only individual members, and that a class
18
action is superior to other available methods for fairly and
19
efficiently adjudicating the controversy.” Fed. R. Civ. P.
20
23(b)(3). In making its findings on these two issues, courts may
21
consider “the class members’ interests in individually controlling
22
the prosecution or defense of separate actions,” “the extent and
23
nature of any litigation concerning the controversy already begun
24
by or against class members,” “the desirability or undesirability
25
of concentrating the litigation of the claims in the particular
26
forum,” and “the likely difficulties in managing a class action.”
27
Id.
28
19
1
2
1. Predominance
“The Rule 23(b)(3) predominance inquiry tests whether
3
proposed classes are sufficiently cohesive to warrant adjudication
4
by representation.” Amchem Products, Inc. v. Windsor, 521 U.S.
5
591, 623 (1997). “Even if Rule 23(a)'s commonality requirement may
6
be satisfied by [a] shared experience, the predominance criterion
7
is far more demanding.” Id. at 623-24. Predominance cannot be
8
satisfied if there is a much “greater number” of “significant
9
questions peculiar to the several categories of class members, and
10
to individuals within each category.” Id. at 624. However, Rule
11
23(b)(3) predominance “requires a showing that questions common to
12
the class predominate, not that those questions will be answered,
13
on the merits, in favor of the class.” Amgen Inc. v. Connecticut
14
Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013).
15
Plaintiff argues that predominance is satisfied because the
16
realistic requirements of the Fleet Manager positions are
17
identical and that any variation in the position is so minimal as
18
to have no effect on the question of whether a Fleet Manager’s
19
duties satisfy any of the requirements for an administrative or
20
executive exemption. (Mot. 23-24.) Defendant asserts that there is
21
variation in the duties of different Fleet Managers. Defendant
22
also argues that this class cannot be certified because it runs
23
afoul of the holding in Comcast Corp v. Behrend, 133 S. Ct. 1426
24
(2013), that the predominance requirement is not satisfied where
25
“questions of individual damage calculations will inevitably
26
overwhelm questions common to the class.” Id. at 1433. Here, Fleet
27
Managers did not record their time and Plaintiff acknowledges they
28
did not all work the same number of hours. (Alexander Dep. 11:220
1
12:1; Response to Special Interrogatory Nos. 8-10, Gruber Decl.,
2
Ex. D.) Thus, Defendant contends that there is no workable method
3
for calculating damages that would not require individual
4
determinations, which overwhelm the efficiency of the class
5
device.
6
As an initial matter, Comcast cannot be read as a general
7
prohibition on class actions when damages cannot be calculated on
8
a classwide basis. Rather, Comcast stands for the proposition that
9
a “plaintiff must be able to show that their damages stemmed from
10
the defendant’s actions that created the legal liability.” Leyva
11
v. Medline Indus., Inc., 716 F.3d 510, 514 (9th Cir. 2013). The
12
issue in Comcast was whether a particular model for calculating
13
damages was permissible if it did not only calculate the damages
14
for the theory of liability advanced by plaintiffs. Comcast, 133
15
S. Ct. at 1433. The Ninth Circuit has repeatedly held since
16
Comcast that “differences in damage calculations do not defeat
17
class certification after Comcast.” Pulaski & Middleman, LLC v.
18
Google, Inc., 802 F.3d 979, 988 (9th Cir. 2015), cert. denied, 136
19
S. Ct. 2410 (2016); accord Jimenez v. Allstate Insurance Co., 765
20
F.3d 1161, 1167 (9th Cir. 2014).
21
Here, the Plaintiff posits a single theory of class
22
liability: Fleet Managers are misclassified as exempt. Assuming
23
that can be demonstrated, Comcast requires a damage model that can
24
computer the injury caused by that misclassification without
25
including additional theories of injury that were not prove. It
26
does not stand for the proposition that no model can be utilized
27
to calculate damages. In this case, Defendants do not provide, nor
28
can the court discern, a reason why the damages model would be
21
1
unable to calculate the injury suffered by unpaid overtime and
2
missed rest and meal breaks of this class of Plaintiffs. As to the
3
question of whether individual questions of liability predominate,
4
the court concludes that this putative class satisfies the
5
predominance requirement. Defendants have submitted evidence that
6
there is some variation in the specifics tasks performed by
7
individual Fleet Managers but Plaintiffs contend that these
8
variations do not address the central question of whether Fleet
9
Managers performed any tasks that would justify an exempt
10
classification. Based on the evidence submitted of the substantial
11
overlap in the Fleet Manager role and the lack of evidence that
12
the some individual Fleet Managers are engaged primarily in exempt
13
tasks, the court finds that predominance requirement is satisfied.
14
15
2.
Superiority
Rule 23(b)(3) also requires a class action to be “superior to
16
other available methods for fairly and efficiently adjudicating
17
the controversy.” Fed. R. Civ. P. 23(b)(3).
18
provides four factors the Court must consider in Rule 23(b)(3)(A)
19
through (D):
20
(A)
21
(B)
22
23
(C)
24
(D)
The Rule further
the class members’ interests in individually
controlling the prosecution or defense of separate
actions;
the extent and nature of any litigation concerning
the controversy already begun by or against class
members;
the desirability or undesirability of concentrating
the litigation of the claims in the particular forum;
and
the likely difficulties in managing a class action.
25
Here, Plaintiff argues that Fleet Managers have nearly
26
identical responsibilities and none of those responsibilities
27
qualify the position as exempt. (Mot. 24-25.) Given this theory of
28
22
1
liability, Plaintiff contends that the class device is superior to
2
repeated mini-trials showing that a Fleet Manager performs the
3
same responsibilities and is not properly classified as exempt.
4
(Id.) Defendant main argument as to superiority is that Plaintiff
5
has not submitted “a suitable and realistic plan for trial of the
6
class claims” and that individual trials would allow the court to
7
better assess the duties and responsibilities of individual Fleet
8
Managers. (Opp’n 24 (quoting Zinser v. Accufix Research Inst.,
9
Inc., 253 F.3d 1180, 1189 (9th Cir. 2001)).) In this particular
10
case, the variation between Fleet Managers’s responsibilities
11
appears limited and does not contravene Plaintiff’s contention
12
that all Fleet Managers do not engage in certain activities
13
required to invoke either the administrative or executive
14
exemption. This issue appears to amenable to classwide resolution
15
and would more efficiently answer the classification question than
16
requiring numerous individual trials.
17
IV.
18
19
CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s
Motion for Class Certification.
20
21
IT IS SO ORDERED.
22
23
Dated: August 10, 2016
DEAN D. PREGERSON
United States District Judge
24
25
26
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