Rosales et al v. El Rancho Farms

Filing 56

ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS Denying Plaintiffs' Motion For Class Certification (Doc. 33 & 52 ), signed by Chief Judge Anthony W. Ishii on 1/30/2012. (Fahrney, E)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 MARGARITA ROSALES and ANGELICA ) ROSALES, on behalf of themselves and all ) others similarly situated, ) ) Plaintiffs, ) ) v. ) ) ) EL RANCHO FARMS and DOES 1-20, ) ) Defendants. ) ) 1:09-cv-00707-AWI-JLT ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATION DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (Doc. 52) Plaintiffs Margarita Rosales and Angelica Rosales1 (“Plaintiffs”) seek certification of four 19 classes of individuals who worked at El Rancho Farms pursuant to Federal Rule of Civil Procedure 20 23. (Docs. 33-37). Specifically, the classes Plaintiffs seek to certify are defined as follows: 21 The Unpaid Rest Break Class: All fieldworkers employed or jointly employed by El Rancho who were paid a pure piece rate at any time between 03/5/2000 to the present. 22 23 The Untimely Rest & Meal Break Class: All fieldworkers employed or jointly employed by El Rancho from 03/5/2000 to the present whose rest or meal break was scheduled at noon or later. 24 25 The Off-the-Clock-Class: All harvest fieldworkers employed by or jointly employed by El Rancho from 03/5/2000 to the present who washed trays and/or performed work 26 1 27 28 The true and correct name of “Angelica Rosales” is “Maria Lorena Corza Alvarado,” though she is known as “Lorena Corza.” Ms. Corza reports she used the name of her daughter, “Angelica Rosales,” while working at El Rancho. Therefore, the Magistrate Judge referred to plaintiff “Angelica Rosales” as “Lorena Corza.” For the sake of clarity, the Court will continue to do so. 1 1 activities before the shift off the clock. 2 The Tool Class: All fieldworkers employed by or jointly employed by El Rancho from 3/5/2001 to the present who purchased work tools. 3 4 (Doc. 37 at 1-6). On December 12, 2011, the Magistrate Judge recommended Plaintiffs’ motion for 5 class certification be denied. (Doc. 52). Plaintiffs filed timely objections to the Findings and 6 Recommendations on December 27, 2011. (Doc. 53). In their objections, Plaintiffs also contend 7 that the Magistrate Judge’s December 12, 2011 order (Doc. 51) granting in part denying in part 8 Plaintiffs’ motion to strike various declarations submitted by Defendant in opposition to class 9 certification was erroneous and contrary to the law, and requested that the Court reconsider the order. 10 On January 10, 2012, Defendant filed its response to the Findings and Recommendations. 11 I. 12 13 LEGAL STANDARDS Class certification is governed by the Federal Rules of Civil Procedure, which provide a class action is proper if: 14 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 15 16 Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, 17 typicality, and adequacy of representation, and “effectively limit the class claims to those fairly 18 encompassed by the named plaintiff’s claims.” General Telephone Co. of the Southwest. v. Falcon, 19 457 U.S. 147, 155-56 (1982) (citing General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980)). 20 The Court is required to perform a “rigorous analysis,” which may require it “to probe behind 21 the pleadings before coming to rest on the certification question.” Wal-Mart Stores, Inc. v. Dukes, 22 131 S. Ct. 2541, 2551 (2011) (quoting Falcon, 457 U.S. at 160-61). The discretion of whether to 23 certify a class is committed to the discretion of the Court within the guidelines of Rule 23. See Fed. 24 R. Civ. P. 23; Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 (9th Cir. 1977). 25 II. FINDINGS OF THE MAGISTRATE JUDGE 26 As an initial matter, the Magistrate Judge noted each proposed definition included workers 27 “employed by or jointly employed by El Rancho.” (Doc. 52 at 14). The Magistrate Judge observed, 28 2 1 2 3 Because the class definitions include the employment requirement, if El Rancho did not directly or jointly employ workers, the classes may not be certified. Thus, the Court must examine the working relationship of El Rancho, the farm labor contractors it employs, and the farm laborers to determine whether the relationship satisfies the definition of “employment” or “joint employment” under applicable California law or the Agricultural Workers Protection Act (“AWPA”). 4 5 (Id.) Accordingly, the Magistrate Judge considered the definitions of employment as set forth under 6 California and federal law and concluded “El Rancho was not a ‘joint employer’ as defined by the 7 [Fair Labor Standards Act] and the AWPA nor was it a ‘joint employer’ as that phrase is used by 8 Plaintiffs in their proposed class definitions.” (Id. at 27). However, because “it is improper to 9 advance a decision on the merits to the class certification stage,” the Magistrate Judge continued in 10 the analysis of whether the four proposed classes satisfied the requirements of Rule 23. (Id.) 11 (quoting Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983)). 12 A. 13 The Magistrate Judge observed “a named plaintiff must have the requisite ‘personal stake in 14 the outcome’ and be a member of the class which he or she seeks to represent at the time the class is 15 certified.” (Doc. 52 at 29) (quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974)); see also Falcon, 16 457 U.S. at 156 (“a class representative must be a part of the class and possess the same interest and 17 suffer the same injury as the class members”). In addition, the Magistrate Judge noted the burden of 18 proof is on a plaintiff to establish standing: “even named plaintiffs who represent a class must allege 19 and show that they have personally been injured, not that injury has been suffered by other, 20 unidentified members of the class to which they belong and which they purport to represent.” (Doc. 21 52 at 31) (quoting Lewis v. Casey, 518 U.S. 343, 347 (1996)). 22 The Unpaid Rest Break Class The Magistrate Judge found, “[F]rom the information Plaintiffs provided, it is not clear that 23 Ms. Corza received a pure piece rate during the class period,” and concluded Ms. Corza failed to 24 establish she suffered an injury relevant to this proposed class. (Doc. 52 at 29). Also, the Magistrate 25 Judge noted Ms. Rosales implied in her declaration that she worked only for Garza Contracting 26 during the class period, but contradicted these assertions at her deposition where she testified that she 27 also worked for another farm labor contractor, Golden Grain, “during the period that her declaration 28 represented she was working only for Garza.” (Id. at 30). Further, the Magistrate Judge noted, “Ms. 3 1 Rosales produced pay stubs proving this fact that, indeed she worked for both Garza Contracting and 2 for Golden Grain during this time period. [Citation.] These same pay stubs demonstrate that she did 3 not work for a pure piece rate at any time during any period reflected on the pay stubs.” (Id.) 4 (citations omitted). Further, the Magistrate Judge noted El Rancho offered evidence that 5 demonstrated the employment periods for Ms. Corza and Ms. Rosales differed from the 6 “approximate” dates to which they attested in their declarations, and “pay roll records produced for 7 Garza Contracting by its payroll service . . . demonstrate[d] that Angelica Rosales and Margarita 8 Rosales were paid an hourly wage plus a piece rate production bonus during the applicable periods 9 while working at El Rancho.” (Id.) 10 Given the evidence before the Court, the Magistrate Judge concluded Plaintiffs failed to meet 11 their burden “to demonstrate that either named Plaintiff worked for a pure piece rate during which 12 time they failed to receive paid rest breaks.” (Doc. 52 at 31). Therefore, because Plaintiffs failed to 13 show personal injuries, the Magistrate Judge recommended denial of Plaintiffs’ request to certify 14 “The Unpaid Rest Break Class.” (Id.) 15 B. 16 Plaintiffs reported El Rancho had two schedules for meal and rest breaks: “(1) the meal 17 period is provided at noon . . . or (2) a single rest break is provided at noon with a meal break at 9:00 18 a.m.” (Doc. 52 at 32) (quoting Doc. 37 at 2). The Magistrate Judge noted that in support of 19 commonality of claims, “Plaintiffs submit anecdotal evidence from the proposed class 20 representatives and putative class members, as well as daily time sheets for Garza Contracting.” 21 (Doc. 52 at 32). However, the Magistrate Judge noted the daily time sheet records “demonstrate only 22 the time a meal period was given, and do not reflect if, or when, a rest break was given.” (Id. at 32, 23 n. 11). Therefore, the Magistrate Judge noted it was necessary to rely upon the anecdotal evidence. 24 (Id.) The evidence demonstrated “Garza Contracting employees with different foremen reported 25 various meal and rest schedules,” while Golden Grain workers reported it was a common practice for 26 employees take rest break periods and to be required to work at least five hours without a lunch 27 period. (Id. at 32-33). The Untimely Rest Break & Meal Break Class 28 4 1 The Magistrate Judge observed that, on the other hand, Defendants argued El Rancho did not 2 have a common practice or policy regarding daily schedules, meal periods, or rest breaks because 3 control of the schedules were left to the farm labor contractors. (Doc. 52 at 33). In discussing El 4 Rancho’s status as an employer, the Magistrate Judge discussed evidence that supported Defendant’s 5 assertion that “each farm labor contractor has its own daily schedule, and policies and practices.” 6 (Id. at 18). For example, the owner of Garza Contracting, Irma Garza, attested that Garza 7 Contracting was “responsible for . . . scheduling the meal and rest periods for all field laborers.” (Id. 8 at 19) (quoting Garza Decl. ¶ 9). Also, “Ms. Rosales stated that the foremen advised workers when 9 it was time for meal and rest breaks.” (Id.) (citing Rosales Depo. at 35: 9, 37:14-16). Further, the 10 Magistrate Judge noted declarations submitted by Defendants “uniformly indicated [workers] had 11 not ‘been required to work during the 30-minute meal break,’ though two [declarants] reported they 12 were ‘required to work during the 10-minute rest break.’” (Id. at 34). 13 The Magistrate Judge noted, “Importantly, the evidence provided by Plaintiffs and Defendant 14 appears to be directly in conflict.” (Doc. 52 at 34). The Magistrate Judge observed, “Conflicting 15 testimony poses a significant concern for managing a class action.” (Id.) (quoting Garcia v. Sun 16 Pacific Farming Coop., 2008 U.S. Dist. LEXIS 111969 (E.D. Cal. May 14, 2008), aff’d 359 Fed. 17 App. 724 (9th Cir. Nov. 13, 2009)). The Magistrate Judge found, 18 19 20 21 22 23 24 [T]he substance of the evidence here is similar to that presented in Garcia.2 Field laborers who worked under the same foremen at El Rancho report receiving untimely rest and meal breaks, while others working under the same foremen report receiving timely rest and meal periods. For example, Mariano was the foreman for Vicente Cruz, Balbina Sanchez, Felix Rameriz, and Rosa Perez. Nevertheless, Ms. Sanchez, Mr. Rameriz, and Ms. Perez reported they never “worked more than 4 hours without receiving a 10-minute rest break” or “worked more than 5 hours without receiving a 30-minute meal break.” Although Ms. Sanchez and Mr. Rameriz are current employees, they have worked at El Rancho since 1998 and would have been subject to either schedule Plaintiffs assert were in place during the class period, yet Ms. Sanchez and Mr. Rameriz allege no untimely rest or meal breaks. (See B. Sanchez Decl. ¶¶ 1, 6, 8; F. Rameriz Decl. ¶¶ 1, 6, 8). In addition, some laborers report they were required to work through meal or rest periods—in most instances to meet a quantity requirement set forth by the labor 25 2 26 27 28 In support of class certification in Garcia, the plaintiffs presented declarations from seven employees who asserted the defendant instituted policies that required off-the-clock work, failed to permit meal and rest periods, and did not reimburse workers for tool expenses. In opposition to class certification, the defendants presented 33 employee declarations, including some from individuals who worked in the same crews as the plaintiff’s declarants, who reported they did not work off-theclock, and that the defendant provided meal and rest periods, as well as necessary tools. Garcia, 2008 U.S. Dist. LEXIS 111969, at *28-32. 5 1 contractor foreman—while others report they were not required to work during the meal and rest periods. 2 (Doc. 52 at 36). Because of the dissimilarities and the conflicting testimony of Plaintiffs’ and 3 Defendant’s declarants, the Magistrate Judge concluded Plaintiffs failed to demonstrate 4 commonality, or that there was a “common contention . . . capable of classwide resolution.” (Id.) 5 (quoting Wal-Mart, 131 S.Ct. at 2551). 6 Likewise, the Magistrate Judge found the conflicting evidence defeated a finding that 7 Plaintiffs’ claims satisfied the typicality requirement. (Doc. 52 at 36- 37) (citing Washington v. 8 Joe’s Crab Shack, 271 F.R.D. 628 (N.D. Cal. 2010); Garcia, 2008 U.S. Dist. LEXIS 111969, at *369 37). Plaintiffs reported they were denied timely meal and rest breaks, and had to work through the 10 breaks to meet the quantity requirement, but many declarants asserted they were not denied rest or 11 meal periods, or required to work during one of the breaks. As a result, the Magistrate Judge found 12 Plaintiffs’ “claims are the same or similar to those asserted by declarants in support of the motion, 13 but different from statements provided by Defendant asserting [meal and rest break] violations did 14 not occur.” (Doc. 52 at 37). Therefore, the Magistrate Judge concluded Plaintiffs were unable to 15 meet the requirement of typicality. (Id.) 16 Finally, because Plaintiffs were unable to meet the requirements of commonality and 17 typicality, the Magistrate Judge determined Plaintiffs would not be proper class representatives. 18 (Doc. 52 at 37); see Stearns v. Ticketmaster Corp., 655 F.3d 1013,1027 (9th Cir. 2011) (affirming a 19 finding that the named plaintiffs “are not proper class representatives” because their claims were “not 20 typical of the class members”). 21 C. The Off-the-Clock Class 22 Because any off-the-clock work would not be documented in timekeeping and payroll 23 records, Plaintiffs submitted anecdotal evidence in support of certification of this class. (Doc. 52 at 24 38). Plaintiffs reported they were required to arrive at work early, attend “school,” and clean trays at 25 home during the harvest. (Id.) The Magistrate Judge discussed declarations submitted by Plaintiffs 26 from putative class members who reported they were required to work off the clock by preparing 27 equipment and their work areas, attending school, and washing trays at home. (Id. at 39). Also, the 28 6 1 Magistrate Judge discussed evidence presented by Defendant that workers at El Rancho were not 2 required to perform off-the-clock work, and had the option to leave trays with foremen for cleaning 3 or to take the trays home. (Id. at 39-40). 4 The Magistrate Judge observed, “[T]o construe this evidence, the Court must conclude that 5 some workers were required to work off-the-clock to do tasks such as performing set up or clean up, 6 cleaning trays, or attending training and crew members. However, nearly three times the number of 7 people who make these claims, were not required to work off-the-clock.” (Id. at 40). Therefore, the 8 Magistrate Judge concluded Plaintiffs failed to demonstrate commonality of claims. (Id.) Likewise, 9 the Magistrate Judge found Plaintiffs failed to meet the typicality requirement because the evidence 10 “demonstrates, not a common policy or practice, but practices that varied from worker to worker” 11 and “[b]ecause of this, Plaintiff’s claims are typical of some putative class members, while atypical 12 of others who assert they have never been required to work off-the-clock without pay while working 13 at El Rancho.” (Id. at 40-41) The Magistrate Judge concluded Plaintiffs would not be proper class 14 representatives because their claims were not typical or common. (Id. at 41). Consequently, the 15 Magistrate Judge recommended certification of the class be denied. (Id.) 16 D. 17 Plaintiffs reported they were required to purchase tools necessary for their work, such as The Tool Class 18 scissors for picking, pruning shears, and a case for the shears. (Doc. 52 at 41). The Magistrate Judge 19 noted Plaintiffs provided declarations from “eight putative class members who asserted they were 20 not provided with all the necessary tools” and were required to purchase tools for work at El Rancho. 21 (Id.) Also, the Magistrate Judge observed Defendant provided evidence that farm labor contractors 22 supplied the necessary tools to workers, including records from Garza Contracting and declarations 23 of 71 workers who asserted they were never required to purchase tools without reimbursement. (Id. 24 at 42). The Magistrate Judge found, “Given the conflicting evidence, the Court is unable to conclude 25 that class litigation can provide a common answer to whether tools were provided to field laborers, 26 or whether the laborers were required to purchase necessary tools. Consequently, Plaintiffs have 27 failed to demonstrate commonality.” (Id. at 43). Again, the Magistrate Judge found Plaintiffs’ 28 claims were typical of some putative class members, while atypical of others, and this defeated a 7 1 finding that Plaintiffs satisfied the requirements of Rule 23(a). (Id.) As a result, the Magistrate 2 Judge recommended certification of the class be denied. (Id.) 3 III. 4 PLAINTIFFS’ OBJECTIONS Plaintiffs object to the Magistrate Judge’s recommendation to deny class certification, and 5 reassert several arguments made in support of class certification. Plaintiffs assert that “glaringly 6 absent from the Magistrate Judge’s findings and recommendations is an analysis of critically relevant 7 evidence supporting certification for the classes proposed by Plaintiffs– namely evidence of 8 Defendant’s centralized policies or practices in the form of Defendant’s own PMK admissions and 9 timekeeping records.” (Doc. 53 at 1). According to Plaintiffs, “The PMK testimony speaks to 10 Defendant’s unlawful labor and payroll policies/practices, and the timekeeping records serve as 11 common proof of these unlawful polices/practices,” and admissions by Defendant “are central to 12 class certification, as they establish that Defendant had the power to enforce and did enforce 13 unlawful meal and rest policies.” (Id.) In addition, Plaintiffs “object to the Magistrate Judge’s 14 findings and recommendations regarding joint employer liability.” (Id. at 2). 15 A. 16 Plaintiffs object that the Magistrate Judge did not have authority to examine the question of Findings regarding Joint Employment 17 whether El Rancho was a joint employer of the class, and assert “the Magistrate Judge purports to 18 resolve factual and legal joint employer questions rather than examine whether class certification 19 requirements have been met.” (Doc. 53 at 2). Plaintiffs contend the joint employer analysis is 20 “divorced from any examination of the prerequisites for certification under FRCP 23(a) ad (b)(3).” 21 (Id.) Plaintiffs assert, “At best, the analysis relates to the adequacy of the class definition ... [b]ut ... 22 there is no authority for denying class certification based on a determination on the merits that the 23 class definition is flawed.” (Id. at 5). 24 Also, Plaintiffs assert they “were not given reasonable notice that the sufficiency of their joint 25 employer claim would be decided. They were not given adequate time to develop the facts on which 26 they will reply for purposes of a merits determination of joint employer.” (Doc. 53 at 7). According 27 to Plaintiffs, “Before the Magistrate’s Findings and Recommendations, Plaintiffs were unaware that 28 the Magistrate Judge would treat the joint employer issue as a summary judgment matter.” (Id.) 8 1 B. 2 3 Evidence related to Class Certification 1. The Unpaid Rest Break Class Plaintiffs assert the evidence submitted confirms Ms. Corza and Ms. Rosales worked at a 4 pure piece rate. (Doc. 53 at 20-21). According to Plaintiffs, the Magistrate Judge “fails to recognize 5 that the ‘contract’ work that Mr. (sic) Corza describes in her declaration is piece rate work.” (Id. at 6 20). Plaintiffs argue the suggestion Ms. Corza “failed to establish that she was indeed paid piece rate 7 for the pruning she performed during the class period” is “tenuous . . . at best.” (Id.) Plaintiffs point 8 out that Mr. Kovacevich confirmed pruning “is typically done by piece rate,” because he testified as 9 follows: 10 Q. What tasks are conducted on a piece rate basis? A. Pruning on certain varieties, not all, depending on the age of the vine, girdling. 11 12 (Doc. 53 at 21) (quoting Doc. 53-2, Kovacevich Depo. at 47:14-16). Further, Plaintiffs assert the 13 conclusion that Ms. Rosales “never worked a pure piece rate while working at El Rancho Farms” is 14 “flawed in important respects.” (Id. at 22). Specifically, Plaintiffs contend: 15 16 17 First, Plaintiff Rosales never claimed to have possession or control over all of her paystubs from Golden Grain and Garza. While these paystubs . . . may not reflect that Rosales worked pure piece rate–taken as an incomplete portrait of her paystubs while working at El Rancho–they do not “prove” she never worked pure pace rate. While Defendant claims they have no record that Plaintiff Rosales worked pure piece rate they fail to support this assertion with an evidence. 18 19 (Id.) (internal citations omitted). In addition, Plaintiffs assert the evidence provided by Defendant is 20 unreliable, and the Magistrate Judge’s reliance thereon was misplaced, because they are 21 “contradicted by Plaintiffs’ testimony and paystubs.” (Id. at 22-23). 22 Finally, Plaintiffs assert that even if their claims are not typical of the proposed class, the 23 proper remedy is “to permit substitution of a proper plaintiff if the named plaintiff is found 24 inadequate.” (Doc. 53 at 23) (citing Int’l Woodworkers of America, AFL-CIO v. Chesapeake Bay 25 Plywood Corp., 659 F.2d 1259, 1270 (4th Cir. 1981); Dameron v. Sanai Hosp. of Baltimore, 559 F. 26 Supp. 1404, 1409 (D. Md. 1984); Davis v. Bethlehem Steel Corp., 600 F. Supp. 1312, 1235 (D. Md. 27 1985)). Therefore, Plaintiffs assert counsel should be permitted “to add an additional class 28 9 1 representative capable of meeting Rule 23 typicality requirement and represent[] the interests of the 2 ‘Unpaid Rest Break’ class.” (Id. at 24). 3 4 2. The Untimely Meal & Rest Break Class Plaintiffs assert they “provided the Magistrate [Judge] with a massive amount of evidence 5 demonstrating that Defendant enforces rest and meal break schedules that contravene the State’s 6 meal and rest break laws.” (Doc. 53 at 7). Plaintiffs contend the Magistrate Judge’s finding that 7 Plaintiffs failed to meet the commonality and typicality requirements “is premised on a fundamental 8 failure to consider key evidence submitted by the Plaintiff that is capable of resolving the factual 9 questions common to the class in one stroke.” (Id. at 11). Plaintiffs contend the Magistrate Judge 10 failed to consider the daily reports, “which demonstrate a company-wide policy and practice of 11 untimely rest and meal breaks,” or to consider deposition testimony from Defendant’s PMK and 12 declarations from Irma Garza and Ofilia Tinoco discussing “a company-wide policy and practice of 13 scheduling untimely rest and meal breaks.” (Id. at 13, 15, 17). Due to these admissions, Plaintiffs 14 contend the case is distinguishable from Garcia because “the violative meal and rest break 15 scheduling policy . . . applied to all crews and field workers at El Rancho.” (Id. at 12). 16 Further, Plaintiffs contend the dissimilarities and conflicting testimony of class members 17 identified by the Magistrate Judge were an “inaccurate reading of the Plaintiffs’ class member 18 declarations.” (Doc. 53 at 18). Plaintiffs explain the differences between the meal and rest breaks 19 attested to by Vicente Cruz and Virginia Cruz are due to the fact that they were employed at different 20 times at El Rancho, and therefore subject to different meal and rest break policies. (Id. at 18-19). 21 Plaintiffs argue also that the daily reports “show a remarkable consistency in the time of meal breaks 22 for the various crews.” (Id. at 19). Finally, Plaintiffs contend the dissimilarities addressed by the 23 Magistrate Judge regarding “whether some workers occasionally worked through their rest or meal 24 periods in order to meet their box quota for the day” are immaterial because “Plaintiffs do not move 25 for certification for a class of workers who were occasionally denied rest or meal breaks.” (Id.) 26 27 28 3. The Off-the-Clock Class Plaintiffs assert Defendant “maintained a practice and policy which suffered and permitted field laborers to work off the clock.” (Doc. 53 at 24). Plaintiffs contend the Magistrate Judge 10 1 “fail[ed] to account for Defendant’s own admission of a tacit policy authorizing and permitting 2 workers to wash trays at home without compensation prior to approximately 2005.” (Id. at 25). 3 According to Plaintiffs, the Magistrate Judge also “fail[ed] to consider the evidence from 4 Defendant’s PMK testimony and Irma Garza, both of which point, at a minimum, to a policy and 5 practice during the class period authorizing and permitting workers to clean their grape trays at home 6 without being properly compensated.” (Id. at 26). 7 4. 8 The Tool Class Plaintiffs further contend the Magistrate Judge failed to consider the evidence presented by 9 Irma Garza “that she has no tool receipts prior to 2006.” (Doc. 53 at 26). Plaintiffs assert, “The lack 10 of these receipts, when coupled with Plaintiff’s declarations and deposition testimony . . . evidences 11 a practice and policy of failing to reimburse class members for their tools purchased prior to 2006.” 12 (Id. at 26-28). 13 5. 14 Request for Reconsideration Lastly, Plaintiffs request the Court reconsider the Magistrate Judge’s December 12, 2011 15 order granting in part and denying in part Plaintiffs’ motion to strike various declarations submitted 16 by Defendant in opposition to class certification. Plaintiffs contend the declarations not stricken by 17 the Magistrate Judge must be stricken because the declarants “were not informed of the existence of 18 the litigation nor the consequences of signing” and the “declarations are unreliable as they were 19 coercively gathered.” (Doc. 53 at 27, 28). 20 IV. DISCUSSION AND ANALYSIS 21 A. Discussion of El Rancho’s Joint Employer Status 22 Though Plaintiffs assert the Magistrate Judge lacked jurisdiction to make a finding on 23 whether El Rancho was a joint employer, the Magistrate Judge made it clear that the discussion was 24 specifically undertaken because the class definition included the requirement that El Rancho be an 25 employer or joint employer of its workers, and “if El Rancho did not directly or jointly employ 26 workers, the classes may not be certified.” (Doc. 52 at 14). In addition, the Magistrate Judge 27 acknowledged it was improper to advance a decision on the merits at the class certification stage, and 28 proceeded to examine whether the individual classes satisfied the requirements of Rule 23, 11 1 regardless of any findings regarding joint employment. (Id. at 27). Thus, the analysis regarding joint 2 employment was not determinative. Rather, the Magistrate Judge concluded, “even if joint 3 employment was proven, Plaintiffs have not demonstrated the Rule 23 prerequisites are satisfied for 4 the four proposed classes.” (Id. at 44) (emphasis added). Thus, the decision to deny class 5 certification was based on Plaintiffs’ failure to meet their burden to show the Rule 23 requirements 6 were satisfied, and the Magistrate Judge did not exceed her jurisdiction. 7 Moreover, though Plaintiffs suggest they should have received more notice that the status of 8 El Rancho as a joint employer would be discussed in the course of class certification, this argument 9 is misleading and unpersuasive. Indeed, review of the documents related to class certification 10 reveals that Plaintiffs identified this issue in their motion for class certification when they asserted 11 “Defendant may challenge that they are not liable in this case, as they employed an FLC.” (Doc. 37 12 at 27). Further, the issue was briefed by the parties who presented arguments based upon factors 13 considered by the Magistrate Judge in her discussion of whether El Rancho was a joint employer as 14 used in the class definitions. (See Doc. 37 at 27-31; Doc. 40 at 34- 36; Doc. 43 at 26-28). 15 B. 16 Plaintiffs identify several pieces of evidence they assert the Magistrate Judge failed to address Consideration of the Evidence 17 or consider. Contrary to Plaintiffs’ contention, the Magistrate Judge considered all admissible 18 evidence in the analysis of class certification. (Doc. 52 at 14). 19 C. 20 Although Plaintiffs attack the reliability of the evidence, or lack thereof, presented by 21 Defendant in support of its opposition to the motion, Plaintiffs fail to acknowledge that the burden is 22 on a claimant to establish standing to assert a claim. As the Magistrate Judge noted, “Regardless of 23 any failure by Defendant to maintain records for various farm labor contractors, Plaintiffs bear the 24 burden of proof on the issue of standing.” (Doc. 52 at 31) (citing Lewis v. Casey, 518 U.S. 343, 347 25 (1996); Pence v. Andrus, 586 F.2d 733, 737 (9th Cir. 1978). Though Plaintiffs alleged they were 26 paid pure piece rates, they failed to show this to be true. See Lewis, 518 U.S. at 347 (“even named 27 plaintiffs who represent a class must allege and show that they personally have been injured”); 28 Pence, 584 F.2d at 737 (named plaintiffs “must allege and show” personal injury) (emphasis added). The Unpaid Rest Break Class 12 1 Plaintiffs urge the Court to conclude Ms. Corza received piece rate pay because she 2 performed pruning work and Mr. Kovacevich testified that “[p]runing on certain varieties” was paid 3 on a piece-rate basis, but Plaintiffs have provided no evidence that Ms. Corza performed pruning 4 work on the applicable variety during the class period, because her declaration is applicable to work 5 completed beyond the scope of the class period. Similarly, while Plaintiffs assert Ms. Rosales 6 received pure piece rate pay for pruning done at El Rancho Farms in 2003 (Doc. 53 at 23), the pay 7 stubs produced by Ms. Rosales for work done with Garza Contracting and Golden Grain Farm Labor 8 Contractor in 2003 demonstrate only hourly plus piece-rate work. (Doc. 40-19, Estrada Decl., Exh. 9 F at 2-12). Consequently, Plaintiffs failed to meet their burden to show a personal injury applicable 10 to the claims of this class, and are unable to represent such a class. See Sonsa v. Iowa, 419 U.S. 393, 11 399 (1975) (“A litigant must be a member of the class which he or she seeks to represent at the time 12 the class action is certified by the district court”). 13 Plaintiffs assert they should be permitted to amend the complaint for an individual who has 14 standing to assert this claim, but no formal motion to amend the complaint was made to the Court on 15 this issue. Moreover, the Ninth Circuit has opined substitution is proper where a class is certified 16 before the class representative is found to be improper. See Kuahulu v. Employers Ins. of Wausau, 17 557 F.2d 1334, 1336-37 (9th Cir. 1977). However, even where a class has been certified, if a 18 plaintiff is found to not be a proper class representative because she is unable to state the claim, 19 “substitution of a new plaintiff is not required.” Moreno v. Autozone, Inc. 410 Fed. Appx. 24, 25 20 (9th Cir. 2010) (citing Lierboe v. State Farm Mut. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003). 21 Accordingly, the Court declines to find Plaintiffs have a right to substitute a proper class 22 representative at this time. 23 D. 24 The Magistrate Judge observed that there were two meal and rest break schedules, but noted 25 that Ms. Garza attested Garza Contracting was responsible for “scheduling the meal and rest periods 26 for all field laborers.” (Doc. 52 at 19) (quoting Garza Decl. ¶ 9). To the extent that either policy was 27 a violation of California law or Wage Order 14, the Magistrate Judge declined to make a decision on 28 the merits therefor or determine the meaning of Wage Order 14, because “the meaning of Wage The Untimely Meal & Rest Break Class 13 1 Order 14 is not determinative here.” (Id. at 29, n. 9). This was not an error, because the Ninth 2 Circuit has opined that a decision on the merits should not be made at the class certification stage. 3 Moore, 708 F.2d at 480. 4 Plaintiffs explain why the schedules attested to by Vicente Cruz differed from that of Virginia 5 Cruz, but fail to explain why the 57 declarants on behalf of Defendant contradicted the claims of 6 Plaintiffs’ declarants. (See Doc. 53 at 13). Rather, Plaintiffs assert the evidence is not contradictory, 7 because the meal and rest break policies applied to all crews. (Id.) Though this may have been true, 8 this does not explain the differences in application of the policy, or why “[f]ield laborers who 9 worked under the same foremen at El Rancho report receiving untimely rest and meal breaks, while 10 others working under the same foremen report receiving timely rest and meal periods.” (Doc. 52 at 11 36). As the Magistrate Judge noted, employees who worked at El Rancho who “would have been 12 subject to either schedule Plaintiffs assert were in place during the class period . . . allege no 13 untimely rest or meal breaks.” (Id.) Consequently, Plaintiffs fail to demonstrate that the evidence 14 was not contradictory or that this case should be distinguished from Garcia, in which the Court found 15 the conflicting evidence defeated a finding that the plaintiff satisfied the requirements of 16 commonality. See Garcia, 2008 U.S. Dist. LEXIS 111969; see also Arrendondo v. Delano Farms 17 Co., 2011 U.S. Dist. LEXIS 44134 (E.D. Cal. Apr. 19, 2011) (observing “conflicting evidentiary 18 support may preclude certification,” but finding the evidence was not contradictory where the 19 defendant’s declarants were all currently employees who failed to provide information regarding the 20 duration of their employment, and “[did] not provide sufficient evidence of labor practices during 21 any period other than the current time period.”). 22 E. 23 Plaintiffs contend that the Magistrate Judge failed to consider the testimony of Defendant’s The Off-the-Clock Class 24 PMK and Ms. Garza regarding the policy allowing workers to clean trays at home without 25 compensation (Doc. 53 at 26) (citing Garza Decl. ¶ 19; Kovacevich Depo. at 35:5-22). However, 26 the testimony of Mr. Kovacevich and Ms. Garza was in fact considered–and addressed– by the 27 Magistrate Judge. The Magistrate Judge noted the following testimony with regard to tray cleaning 28 and off-the-clock work: 14 1 2 3 4 5 6 7 8 9 10 Ms. Tinoco reported, “Garza Contracting prohibits any work off the clock.” (O. Tinoco Decl. ¶ 9). Ms. Tinoco reported, “Field laborers were and are prohibited from setting up” and “were prohibited from doing any of the clean up after the scheduled work day.” (Id. ¶¶ 11, 13). According to Ms. Tinoco, this work was completed by the field supervisor (herself) and the Garza Contracting foremen, who “set up tables, umbrellas, and everything else necessary for field laborers to perform their duties,” and “clean[ed] up all of the equipment and work stations.” (Id. ¶¶ 11, 13). In addition, Ms. Tinoco and Mr. Kovacevich testified the workers were not required to clean trays at home. (Id. ¶ 13; Kovacevich Depo. at 34:10-20). Specifically, Mr. Kovacevich reported the workers had the option of either leaving their trays with the foreman or taking the trays home. (Kovacevich Depo. at 34:10-20; 35:6-10). If the trays were taken home, it was not for the purpose of cleaning them and there was no requirement that the trays be kept clean. (Id.) Mr. Kovacevich testified that he informed Garza in 2007 that if El Rancho wanted the trays cleaned, El Rancho would provide supplies to clean them during working hours. (Id.) Likewise, Ms. Garza reported, “Field laborers are given the option to either leave their trays on the field, take them home, or give them to their foremen for cleaning.” (Garza Decl. ¶ 19). (Doc. 52 at 39). Further, the Magistrate Judge noted “each of Defendant’s 71 declarants indicated they have never been ‘required to work3 off the clock without pay,’” (Id., citing e.g., B. Sanchez 11 Decl. ¶ 2; E. Zamora Decl. ¶ 2; R. Perez Decl. ¶ 2; F. Rameriz; Decl. ¶ 2; L. Garcia Decl. ¶5). 12 Significantly, Plaintiffs fail to address this contradictory anecdotal evidence, which the Magistrate 13 Judge found defeated a finding that Plaintiffs satisfied the commonality and typicality requirements. 14 (Doc. 52 at 40-41). 15 F. The Tool Class 16 According to Plaintiffs, the Magistrate Judge failed to consider all the evidence with regard to 17 this proposed class, and allege the lack of receipts from Garza Contracting prior to 2006, when 18 coupled with other evidence, demonstrates “a practice and policy of failing to reimburse class 19 members for their tools prior to . . . 2006.” (Doc. 53 at 26-27). However, the Magistrate Judge 20 observed that “each of Defendant’s declarants indicated they have never ‘been required to purchase 21 hand tools that are necessary to perform the employment duties. Thus, 71 individuals working for 22 Garza Contracting on El Rancho property assert they have never been required to purchase tools 23 without reimbursement.” (Doc. 52 at 42). In addition, the Magistrate Judge noted that “none of 24 Plaintiff’s declarants who worked through Golden Grain, assert they were required to purchase tools 25 for work at El Rancho.” (Id.) Significantly, employees such as Balbina Sanchez, who began 26 27 3 28 In the declarations, “work” was defined as “including attending trainings or crew meetings, arriving early for set up, and cleaning trays.” (See, e.g., B. Sanchez Dec. ¶ 2) 15 1 employment in 1998 and Elena Zamora, who began employment in 2000, are included among those 2 who attest they were not required to purchase tools. (B. Sanchez Decl. ¶ 1; E. Zamora Decl. ¶ 1). 3 Again, Plaintiffs fail to address this contradictory evidence presented by Defendant’s declarants, or 4 show that this case should be distinguished from the Court’s prior holding in Garcia that the 5 contradictory evidence defeated a finding of commonality. 6 G. 7 Lastly, Plaintiffs request reconsideration of the Magistrate Judge’s December 12, 2011 order Request for Reconsideration 8 granting in part and denying in part Plaintiffs’ motion to strike various declarations submitted by 9 Defendant in opposition to class certification. 10 Fed. Rule Civ. Proc. 72(a) allows a party to serve and file objections to a Magistrate Judge’s 11 nondispositive order, to be decided by the District Judge. In this district, such an objection is treated 12 as a motion for reconsideration by the assigned District Court Judge. See Local Rule 303. When 13 moving for reconsideration, Local Rule 230(j) requires a party to show “what new or different facts 14 or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, 15 or what other grounds exist for the motion.” The court reviews a motion to reconsider a Magistrate 16 Judge’s ruling under the “clearly erroneous or contrary to law” standard set forth in 28 U.S.C. § 17 636(b)(1)(A). See also Fed. Rule Civ. Proc. 72(a). “A finding is ‘clearly erroneous’ when although 18 there is evidence to support it, the reviewing court, after reviewing the entire evidence, is left with 19 the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum 20 Co., 333 U.S. 364, 395 (1948); see also Anderson v. Equifax Info. Services LLC, 2007 WL 2412249, 21 *1 (D.Or.2007) (“Though Section 636(b)(1)(A) has been interpreted to permit de novo review of the 22 legal findings of a magistrate judge, magistrate judges are given broad discretion on discovery 23 matters and should not be overruled absent a showing of clear abuse of discretion.”). Motions to 24 reconsider are committed to the discretion of the trial court. Rodgers v. Watt, 722 F.2d 456, 460 (9th 25 Cir.1983). 26 The Court has reviewed the order at issue and finds the Magistrate Judge’s decision was 27 neither clearly erroneous nor contrary to law. Accordingly, Plaintiffs’ request for reconsideration 28 shall be denied. 16 1 2 3 V. CONCLUSION AND ORDER In accordance with the provisions of 28 U.S.C. § 636 (b)(1)© and Britt v. Simi Valley United 4 School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the 5 case. Having reviewed the pleadings of record and all competent and admissible evidence 6 submitted, the Court finds that the findings and recommendation are supported by the record and by 7 proper analysis. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. 10 The Findings and Recommendations filed December 12, 2011 (Doc. 52), are ADOPTED IN FULL; and 11 2. Plaintiffs’ motion for class certification is DENIED. 12 3. Further, Plaintiffs’ request for reconsideration of the December 12, 2011 order 13 granting in part and denying in part Plaintiffs’ motion to strike class member 14 declarations submitted in support of Defendant’s opposition to class certification is 15 DENIED. 16 IT IS SO ORDERED. 17 18 Dated: 0m8i78 January 30, 2012 CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 17

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