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)

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