Hernandez, et al v. ACX Pacific Northwest Inc., et al

Filing 73

ORDER signed by District Judge John A. Mendez on 5/17/2018 GRANTING-IN-PART and DENYING-IN-PART 58 Motion to Certify Class. The Court GRANTS Plaintiffs motion to certify the subclass identified by Plaintiff as the Wilmington Auto-Deduct Class. The Court DENIES Plaintiffs motion to certify either of the other two proposed subclasses. Miguel Rojas-Cifuentes is APPOINTED Class Representative, and Mallison & Martinez is APPOINTED as Class Counsel. (Hunt, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIGUEL ROJAS-CIFUENTES, on
behalf of himself, on behalf
of all others similarly
situated and in the interest
of the general public,

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Plaintiffs,

No.

2:14-cv-00697-JAM-CKD

ORDER DENYING PLAINTIFF’S MOTION
FOR CLASS CERTIFICATION AND
APPOINTMENT OF CLASS COUNSEL

v.
ACX PACIFIC NORTHWEST INC,
PACIFIC LEASING, LLC, JOHN M.
GOMBOS, JOHN E. GOMBOS and
Does 1-20,

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Defendants.
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Plaintiff Miguel Rojas-Cifuentes (“Rojas” or “Plaintiff”)

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moves for class certification under Rule 23 of the Federal Rules

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of Civil Procedure.

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Defendants ACX Pacific Northwest, Inc. (“ACX”), Al Dahra ACX

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Global, Inc. (“Al Dahra”) and Pacific Leasing, LLC (collectively,

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“Defendants”) oppose Plaintiff’s motion.

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reasons set forth below, the Court grants Plaintiff’s motion to

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certify the subclass identified by Plaintiff as the “Wilmington

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Auto-Deduct Class” and denies the motion as to the remaining two

Mot., ECF No. 58; Mem., ECF No. 59.

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ECF No. 64.

For the

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proposed subclasses. 1

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff worked for ACX as a non-exempt employee for a

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little more than one year, up to about May 2013.

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Angel Rojas-Cifuentes, ¶ 3, ECF No. 3; Second Amended Compl.

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(“SAC”), ¶ 7, ECF No. 49.

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Decl. of Miguel

On March 14, 2014, ACX’s former employee Pablo Hernandez and
Rojas filed their initial wage and hour suit against Defendants,

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seeking to represent themselves and a class of non-exempt

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employees employed by, or formerly employed by ACX.

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No. 1 at 2.

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Class Action Complaint (the “FAC”), which no longer included co-

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plaintiff Pablo Hernandez.

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2016, Plaintiff filed a Second Amended Class Action Complaint

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(the “SAC”) after the Court granted his motion to amend the FAC.

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SAC, ECF No. 49; Order, ECF No. 48.

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California Labor Code Private Attorneys General Act (“PAGA”),

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Plaintiff has alleged Defendants violated the Fair Labor

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Standards Act and state wage and hour laws by failing to pay

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minimum wage; failing to pay overtime compensation; failing to

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provide meal and rest breaks as a result of donning and doffing

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and walking time; failing to provide accurate itemized wage

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statements and failing to pay class members statutory penalties.

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SAC, ¶ 15.

Compl., ECF

On May 6, 2014, Plaintiff filed a First Amended

ECF No. 5.

Finally, on October 25,

Seeking to proceed under the

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for March 13, 2018.
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Plaintiff filed his motion to certify class on November 17,

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2017.

ECF No. 58.

In response, Defendants concurrently filed

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their opposition and evidentiary objections to Plaintiff’s

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declarations.

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the categorization of Plaintiff’s three proposed subclasses and

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to Plaintiff amending the complaint to add Al Dahra ACX Global,

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Inc. as a defendant because ACX Pacific Northwest changed its

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name to “Al Dahra ACX Global, Inc.” in early 2016.

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After Plaintiff filed his reply brief in support of his motion

ECF Nos. 63, 64.

The parties then stipulated to

ECF No. 61.

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for class certification, Defendants and Plaintiff both filed

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notices of supplemental authority.

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also stipulated to Plaintiff withdrawing the Declaration of

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Vicente Arroyo in support of his motion.

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Vicente Arroyo, ECF No. 63-1; Notice of Withdrawal, ECF No. 67.

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On April 26, 2018, at the Court’s request, the parties filed

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supplemental briefs addressing issues related to resolving

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Plaintiff’s request to certify the proposed Wilmington Auto-

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Deduct subclass and the proposed Wilmington Meal Period and

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Stockton Second Meal Period & Third Rest Break subclasses.

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Minute Order, ECF No. 70; Pl. Supp. Br., ECF No. 71; Defs. Supp.

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Br., ECF No. 72.

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II.

ECF Nos. 66, 69.

The parties

Obj. to the Decl. of

OPINION

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A.

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Plaintiff seeks to certify the following three subclasses:

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Proposed Subclasses

1.

Stockton Second Meal Period & Third Rest Break
Class

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All current and former non-exempt hourly employees who
worked at Defendants’ Stockton, California location (the
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“Stockton Branch”) from March 14, 2010 to the present that

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worked at least one shift greater than 10 hours and up to and

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including 12 hours.

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2.

Mot. at 3.

Wilmington Meal Period Class

All current and former non-exempt hourly employees who

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worked at Defendants’ Wilmington, California location (the

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“Wilmington Branch”) from March 14, 2010 to the present that

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worked at least one shift greater than 6 hours and either:

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(a) received a short meal period (less than 30 minutes), a late

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meal period (after the fifth hour of work), an unrecorded first

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meal period; or (b) did not receive a second recorded meal

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period for shifts greater than 10 hours.

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3.

Mot. at 3-4.

Wilmington Auto-Deduct Class

All current and former non-exempt hourly employees who

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worked at the Wilmington Branch from March 14, 2010 to the

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present that worked at least one shift greater than 6 hours and

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had 30 minutes of pay automatically deducted for a meal period.

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Mot. at 4.

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B.

Discussion

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According to Rule 23(a), a plaintiff seeking to certify a

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class must show that “(1) the class is so numerous that joinder

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of all members is impracticable; (2) there are questions of law

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or fact common to the class; (3) the claims or defenses of the

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representative parties are typical of the claims or defenses of

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the class; and (4) the representative parties will fairly and

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adequately protect the interests of the class.”

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23(a).

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23(b) categories.

Fed. R. Civ. P.

The plaintiff must then satisfy one of the three Rule
In the instant case, the parties focus on the
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“predominance” and “superiority” requirements under Rule

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23(b)(3).

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1.

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Numerosity

Numerosity requires that the class be “so numerous that

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joinder of all members is impracticable.”

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23(a)(1).

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2.

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Fed. R. Civ. P.

Commonality

Commonality requires Plaintiff to affirmatively show “that
the class members have suffered the same injury.”

Wal-Mart

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Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (internal

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quotation marks and citation omitted).

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contention must be “capable of class-wide resolution.”

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“Dissimilarities within the proposed class” impede the

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commonality requirement because they prevent the formation of

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“even a single common question.”

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3.

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The class’s common
Id.

Id. at 350, 359.

Typicality

Rule 23(a)(3) requires that the claims or defenses of the

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class representative “be typical of the claims or defenses of

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the class.”

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and possess the same interest and suffer the same injury as the

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class members.”

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Representative parties’ claims are “typical” when each class

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member’s claim arises from the same course of events, and each

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class member makes similar legal arguments to prove the

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defendants’ liability.

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(9th Cir. 2001) (abrogated on other grounds) (citing Marison v.

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Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997)).

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///

“A class representative must be part of the class

Dukes, 564 U.S. at 353 (citation omitted).

Armstrong v. Davis, 275 F.3d 849, 868

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4.

Adequacy

“Adequacy of representation” requires that class

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representatives “fairly and adequately protect the interest of

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the class.”

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adequacy, the court must resolve whether: (1) the named

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plaintiffs and their counsel have any conflicts of interest with

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other class members and (2) will the named plaintiffs and their

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counsel prosecute the action vigorously on behalf of the class.

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Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)

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To determine legal

(internal citation omitted).

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Fed. R. Civ. P. 23(a)(4).

5.

Predominance

To certify a class under Rule 23(b)(3), the court must find

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that the questions of law or fact common to class members

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predominate over any questions affecting only individual

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members.

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classes are sufficiently cohesive to warrant adjudication by

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representation.

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07-00452, CV 07-04839, 2012 WL 5473764, at *3 (C.D. Cal. Nov. 5,

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2012) (citing Anchem Prods., Inc. v. Windsor, 521 U.S. 591, 623

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(1997)).

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The predominance criterion tests whether proposed

6.

Gonzalez v. Officemax North America, Nos. SACV

Superiority

Class certification under Rule 23(b)(3) also requires that

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the class action be superior to other available methods for

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fairly and efficiently adjudicating the controversy.

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elements involved in this inquiry are: (A) the class members’

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interests in individually controlling the prosecution or defense

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of separate actions; (B) the extent and nature of any litigation

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concerning the controversy already begun by or against class
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The

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members; (C) the desirability or undesirability of concentrating

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the litigation of the claims in the particular forum; and

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(D) the likely difficulties in managing a class action.

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Civ. Pro 23(b)(3)(A)-(D)

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C.

Fed. R.

Analysis
1.

Stockton Second Meal Period & Third Rest Break
Subclass

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Plaintiff contends that Defendants’ policy and practice of
providing employees with a second meal period or third rest

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break only after a shift exceeded twelve hours led to a failure

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to pay Defendants’ employees break premiums, in violation of

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California Labor Code §§ 226.7(b), 512, Industrial Welfare

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Commission Wage Order No. 8 (“Wage Order 8”), Brinker Rest.

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Corp. v. Sup. Ct., 53 Cal. 4th 1004, 1029, 1042 (2012), and

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Cummings v. Starbucks Corp., No. CV 12-06345, 2014 WL 1379119,

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at *6 (C.D. Cal. Mar. 24, 2014).

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(citing Decl. of Marco Palau (“Palau Decl.”), ECF No. 58-1, Ex.

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6, ECF No. 58-7).

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ACX’s “ACX Break and Meal Period Schedule” at the Stockton

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Branch that states that if a worker’s shift is “12+” hours then

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a second 30-minute meal period is provided and a third rest

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break is provided.

Mem. at 6 (citing Palau Decl., Ex. 6 (the

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“ACX Schedule”)).

Plaintiff also alleges Defendants failed to

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provide full ten minute rest periods as a result of donning and

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doffing and walking time.

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Mot. at 3; Mem. at 2, 5

To support his claim, Plaintiff points to

SAC, ¶ 15-c.

Defendants’ Federal Rule 30(b)(6) witnesses testified the

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ACX Schedule accurately reflected ACX’s actual practice, with

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one of the witnesses later claiming that the “12+” hours listed
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on the ACX Schedule was a typo and should have read 10 hours.

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Palau Decl., Ex. 2, Dep. of Stephanie Magana (“Magana Dep.”),

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50:7-51:17, ECF No. 58-3; Palau Decl., Ex. 1, Dep. of John E.

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Gombos (“Gombos Dep.”), 92:21-94:25, ECF No. 58-2; Decl. of John

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E. Gombos (“Gombos Decl.”), ¶ 11, ECF No. 62-3.

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schedule is silent on what breaks are available to employees, if

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any, between hours 10 and 12 of their shift.

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6.

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seeing any such schedule being posted at the Stockton Branch.

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The ACX

Palau Decl., Ex.

At least one of Defendants’ former employees did not recall

Decl. of Travis Wilson (“Wilson Decl.”), ¶ 7, ECF No. 58-15.
In the English and Spanish versions of Wage Order 8 that

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Defendants’ witnesses testify were posted at the Stockton

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Branch, employees were correctly advised of their entitlement to

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rest periods at the rate of ten minutes net rest time per four

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hours or major fraction thereof.

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Decl.”), ECF No. 62-12, Exs. B-C, ECF Nos. 62-14-15; Gombos

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Decl., ¶ 17.

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Branch disagree over whether they normally got appropriate rest

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breaks.

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(“Arroyo Decl.”), ¶¶ 11-19, ECF No. 62-1; Decl. of Reyes Atrian

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(“Atrian Decl.”), ¶¶ 11-17, ECF No. 62-2.

Decl. of Angel Gomez (“Gomez

The parties’ witnesses who worked at the Stockton

Wilson Decl., ¶¶ 6-8; Decl. of Frederico Delgado Arroyo

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California Labor Code § 512 provides that “[a]n employer

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may not employ an employee for a work period of more than ten

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(10) hours per day without providing the employee with a second

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meal period of not less than 30 minutes[.]”

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to provide meal periods as required by the Wage Order must pay

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“one additional hour of pay at the employee’s regular rate of

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compensation for each work day that the meal … is not provided.”
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Employers failing

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Cal. Code Regs. § 11010, subd. 11(B); Cal. Lab. Code § 226.7(b).

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Employers incur liability by failing to authorize and permit

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rest breaks or the correct number of rest breaks per employee

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shift.

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must show that the employer actually prevented the employee from

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taking breaks; mere proof of knowledge that the employee was

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forgoing breaks is insufficient.

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Ins. Co., No. 11-CV-03960, 2013 WL 245452, at *5 (N.D. Cal. Jan.

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22, 2013) (citing Brinker, 53 Cal. 4th at 1040).

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11

Brinker, 53 Cal. 4th at 1033.

a.

An employee, however,

Reece v. Unitrin Auto & Home

Commonality

Plaintiff contends that the common questions with respect

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to this subclass that are capable of resolution on a class-wide

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basis include: (1) whether Defendants maintained a policy of not

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providing a second meal period until the twelfth hour of work at

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the Stockton Branch; (2) whether Defendants maintained a policy

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at the Stockton Branch of not authorizing and permitting a third

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rest period until the twelfth hour of work; and (3) whether

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Defendants maintained a practice and policy during the class

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period that failed to pay break period premiums to employees

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that were denied break periods.

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asserts that these questions can be resolved by looking at the

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following evidence: Defendants’ policy documents; their Rule

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30(b)(6) testimony; Defendants’ electronic timekeeping records;

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and Plaintiff and class member declarations.

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Court finds otherwise.

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Mem. at 6-7.

Plaintiff further

Mem. at 7.

The

In Gonzalez, 2012 WL 5473764, at *4 (C.D. Cal. Nov. 5,

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2012), the Central District denied certification of the

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plaintiffs’ rest break claim because the plaintiffs failed to
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provide any class-wide evidence that precluded the possibility

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that some employees took rest breaks, and that some employees

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voluntarily declined to take their rest breaks, at least some of

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the time.

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The same reasoning applies here.

Plaintiff has presented a facially non-compliant document

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(the ACX Schedule) as prima facie evidence of Defendants’

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policies at the Stockton Branch.

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Plaintiff’s own declarant does not recall seeing the ACX

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Schedule and it is silent on rest periods for shifts between 10

Palau Decl., Ex. 6.

But

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and 12 hours.

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witnesses question the document’s accuracy and testify that

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other facially compliant information was posted at the Stockton

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Branch.

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Decl., ¶¶ 11, 17.

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time records or documents suggesting rest period violations.

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See Mot.; see also Not. of Errata Re: Decl. of Aaron Woolfson

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(“Woolfson Decl.”), ECF No. 60.

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that precludes the possibility of Defendants’ employees being

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able to take rest breaks, a fact-finder would need to engage in

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individual inquiries to determine whether, when, and why an

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employee did not take a rest period.

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Id.; Wilson Decl., ¶ 7.

Further, Defendants’

Gomez Decl. Exs. A-C; Gombos Dep., 92:21-94:25; Gombos
In addition, Plaintiff cannot point to any

Without any class-wide evidence

In his Notice of Supplemental Authority, Plaintiff attached

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Richardson v. Interstate Hotels & Resorts, Inc., No. 16-06772,

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2018 WL 1258192 (N.D. Cal. Mar. 12, 2018), where the Northern

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District certified a rest period class.

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unlike here, the plaintiff’s theory of liability was rooted in a

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specific practice that pressured the defendants’ employees “to

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skip their rest periods to catch up on an unreasonable
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But in Richardson,

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workload[.]”

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defendants’ employees were usually given fourteen rooms to clean

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each day, where each room took 30 minutes, leaving no time to

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finish their other assigned tasks in their allotted seven hour

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workdays.

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document rather than a specific practice or policy in support of

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his motion.

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Id., at *3.

Id.

For example, in Richardson, the

Here, in contrast, Plaintiff relies heavily on a

In addition, Plaintiff’s conclusory allegation that rest

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breaks were not available because of employees using those

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breaks to don and doff and walk are not as specific as the

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alleged policy in Richardson.

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how a fact-finder could resolve this allegation without needing

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to conduct individual inquiries, since Plaintiff has not

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supplied any records, or analysis of any records, involving rest

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periods.

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authority to support a finding that his donning and doffing rest

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break allegation is capable of resolution by common proof.

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See Mot.

SAC, ¶ 15.

It is also unclear

Finally, Plaintiff does not provide any

Because a fact-finder could not resolve Plaintiff’s claim

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regarding rest breaks without engaging in myriad individual

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inquiries, the Court denies certification of the Stockton Second

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Meal Period & Third Rest Break subclass.

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5473764, at *4. 2

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///

See Gonzalez, 2012 WL

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2

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The Court need not reach Plaintiff’s Stockton Branch meal
period claims since the rest period claims are incapable of
class-wide resolution. The Court therefore also does not need to
address the applicability of the Lampe case cited by Defendants
in their notice of supplemental authority. See Defs. Not. of
Supp. Authorities, ECF No. 66 (citing Lampe v. Queen of the
Valley Medical Ctr., 19 Cal. App. 5th 832 (2018)).
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1

2.

2

Wilmington Meal Period Subclass

Plaintiff claims that Defendants’ effective policy and

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practice of using an ad hoc system charging supervisors with

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relieving employees for meal periods as production permits led

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to: (1) employees working longer than six hours and/or ten hours

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without legally compliant meal breaks; and (2) a failure to pay

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Defendants’ employees break premiums, in violation of California

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Labor Code §§ 226.7(b), 512, Wage Order 8, Brinker, 53 Cal. 4th

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at 1029, 1042 (2012).

Mot. at 4; Mem. at 7.

Plaintiff does not

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allege that Defendants maintained a facially non-compliant

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policy with regard to providing meal periods for this subclass.

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Mem. at 8.

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To support his claim, Plaintiff points to Defendants’

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timekeeping records showing 61.1% of Wilmington employee shifts

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greater than 6 hours had a meal period less than thirty (30)

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minutes, a meal period occurring after the fifth hour of work,

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no recorded first meal period, or no second meal period for

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shifts greater than 10 hours.

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¶ 19(i)).

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she cannot remember any meal period premium payments ever being

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made.

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Dep.”), 29:25-30:16, ECF No. 58-4.

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testimonial evidence that employees were forced to cut their

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meal periods short as a result of production demands and the

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need to perform cleaning and donning and doffing activities

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during and around the time that rest and meal breaks are

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scheduled.

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Decl.”), ¶¶ 6-7, ECF No. 58-13; Decl. of David Nunez (“Nunez

Mem. at 8 (citing Woolfson Decl.

One of Defendants’ 30(b)(6) witnesses testified that

Palau Decl., Ex. 3, Dep. of Esther Gonzalez (“Gonzalez
Plaintiff also points to

Mem. at 2 (citing Decl. of Diego Taboada (“Taboada

12

1

Decl.”), ¶¶ 6-7, ECF No. 58-12).

2

In California, “[n]o employer shall employ any person for a

3

work period of more than five (5) hours without a meal period of

4

not less than 30 minutes....”

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11(A); see also Cal. Lab. Code., § 512, subd. (a).

6

explained above, “[a]n employer may not employ an employee for a

7

work period of more than ten (10) hours per day without

8

providing the employee with a second meal period of not less

9

than 30 minutes [.]”

8 Cal. Code Regs. § 11080, subd.

Cal. Lab. Code., § 512.

And, as

Employers incur

10

liability by failing to authorize and permit rest breaks or the

11

correct number of rest breaks per employee shift.

12

Cal. 4th at 1033.

13

employer actually prevented the employee from taking breaks;

14

mere proof of knowledge that the employee was forgoing breaks is

15

insufficient.

16

03960, 2013 WL 245452, at *5 (N.D. Cal. Jan. 22, 2013) (citing

17

Brinker, 53 Cal. 4th at 1040).

18
19

Brinker, 53

An employee, however, must show that the

Reece v. Unitrin Auto & Home Ins. Co., No. 11-CV-

a.

Commonality

Plaintiff asserts that the common questions with respect to

20

this subclass that are capable of resolution on a class-wide

21

basis include: (1) whether Defendants maintained an effective

22

policy and practice that systematically discouraged full thirty

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minute meal periods; and (2) whether Defendants maintained an

24

effective policy and practice of not paying meal period premiums

25

for improperly denied meal breaks.

26

contends these questions can be resolved by analyzing the

27

following evidence: Defendants’ electronic timekeeping and

28

payroll records; Plaintiff’s class member declarations; and
13

Mem. at 10.

Plaintiff

1

testimony from Defendants’ 30(b)(6) witnesses.

2

disagrees.

3

The Court

In Brinker, Justice Werdegar stated in her concurrence the

4

rebuttable presumption that an employer’s failure to keep

5

timekeeping records of meal breaks suggests the employee was not

6

relieved of duty and no meal period was provided.

7

Cal. 4th at 1053 (Werdegar, J., conc.).

8

been applied as persuasive authority by a number of federal

9

courts, including this one.

Brinker, 53

This presumption has

See e.g., Morales v. Leggett &

10

Platt Inc., No. 15-cv-01911, 2018 WL 1638887, at *5 (E.D. Cal.

11

Apr. 5, 2018) (applying the presumption in certifying auto-

12

deduction subclass); Brewer v. Gen. Nutrition Corp., No. 11-CV-

13

3587, 2014 WL 5877695, at *7 (N.D. Cal. Nov. 12, 2014) (applying

14

the presumption in certifying meal break and rest break

15

subclasses); Ordonez v. Radio Shack, Inc., No. CV 10-7060, 2013

16

WL 210223, n.9 (C.D. Cal. Jan. 17, 2013) (ruling that the

17

defendant had rebutted the presumption by showing plaintiff had

18

failed to identify any common policy that uniformly deprived

19

employees of the opportunity to take breaks, such that

20

individualized inquiries could be avoided).

21

plaintiff does not allege a facially unlawful policy, evidence

22

showing some employees may have been deprived of the opportunity

23

to take a proper meal break does not amount to a policy and

24

practice capable of determining an employer’s liability on a

25

class-wide basis.

26

quotation marks and citation omitted).

27
28

But when a

See Ordonez, 2013 WL 210223, at *7 (internal

i. Time Entry Theory Of Liability
In Ordonez, the Court ruled that “[t]o the extent that
14

1

plaintiff relies on a presumption that arises from the empirical

2

evidence that many class members had short, late, or missed meal

3

periods, the Court finds that defendant has rebutted this

4

presumption” because “plaintiff failed to identify any common

5

policy that uniformly deprived employees of the opportunity to

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take meal breaks.”

7

the defendant in Ordonez, have rebutted the presumption from

8

Brinker by showing that Plaintiff has failed to identify any

9

common policy that uniformly deprived employees of the

2013 WL 210223, at n.9.

Defendants, like

10

opportunity to take breaks.

11

cites employee time records showing 61.1% of Wilmington employee

12

shifts have short, late, or missing meal periods, this only

13

shows potentially problematic meal periods for some employees.

14

As in Ordonez, showing that some employees may have been

15

deprived of an opportunity to take an uninterrupted meal break

16

does not amount to a “policy and practice capable of determining

17

[Defendants’] liability on a class-wide basis.” 2013 WL 210223,

18

at *7 (internal quotation marks and citation omitted).

19

2013 WL 210223.

While Plaintiff

As Defendants point out, the time records that Plaintiff

20

cites say nothing about whether an employee failed to clock out

21

for a meal period, or if they forgot to clock out for a meal

22

period at the actual start of the meal period.

23

time records, like those in Ordonez, “present[] numerous

24

possibilities as to why certain employees may have had a [non-

25

compliant] meal break during a given shift” and the Court

26

“cannot conclude that any short, late, or missed meal break that

27

plaintiff’s expert identified corresponds to a legal violation

28

on a class-wide basis.”

2013 WL, 210223, at *7.

Opp. at 5.

15

The Court

The

1

finds that Defendants have rebutted the presumption arising from

2

the concurrence in Brinker by convincingly arguing that their

3

time records indicating late meal periods, no meal periods, or

4

short meal periods for 61.1% of shifts does not reflect a common

5

policy and practice capable of common resolution on a class-wide

6

basis.

7

Plaintiff asserts that this case is like Safeway, Inc. v.

8

Sup. Ct., 238 Cal. App. 4th 1138, 1153 (2015), where the

9

California Court of Appeal upheld the trial court’s grant of

10

certification of a meal break claim because the dominant common

11

question was “did Safeway’s system-wide failure to pay

12

appropriate meal break premiums make it liable to the class

13

during this period.”

14

distinguishes this case from Safeway.

15

discussion and application of Ordonez, Plaintiff has failed to

16

allege a common policy capable of common resolution on a class-

17

wide basis.

18

cannot proceed to determining whether Defendants are liable for

19

failing to pay meal period premiums for this subclass.

20

the court in Wilson v. TE Connectivity Networks, Inc., No. 14-

21

cv-04872, 2017 WL 1758048, at *7-11 (N.D. Cal. Feb. 9, 2017)

22

pointed out in distinguishing Safeway, the plaintiff in Safeway

23

did not request premium wages accrued by class members and moved

24

for certification under California law and not Rule 23 (citing

25

Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439,

26

444 (N.D. Cal. 1994) (noting “differences between [California]

27

state court’s class certification and the certification sought

28

on [Rule 23] motion”)).

Mem. at 8-9.

That central question
As explained above in the

Without being able to resolve that issue, the Court

Also, as

Because Plaintiff has requested premium
16

1

wages accrued by class members and has moved for certification

2

under Rule 23, his reliance on Safeway is misplaced.

3

Finally, in his supplemental brief, Plaintiff argues that

4

this case is different from Zayers v. Kiewit Infrastructure West

5

Co., No. 16-cv-06405, 2017 WL 4990460 (C.D. Cal. Oct. 26, 2017),

6

where the Central District denied class certification of the

7

plaintiff’s second meal period claims because determining

8

whether the defendant failed to give its employees the

9

opportunity to take a second meal break necessarily required an

10

individualized inquiry.

11

Supp. Br. at 6, ECF No. 71.

12

different because the employer in that case had a facially

13

compliant policy and here, Defendants’ policy before 2015 did

14

not provide for second meal breaks or third rest breaks.

15

Supp. Br. at 6 (citing Doc. 65-14 (Handbook effective June 2010

16

to April 2015)).

17

not involve the second meal break and third rest break claims

18

like Plaintiff’s Stockton Second Meal Period & Third Rest Break

19

subclass.

20

Defendants provided appropriate meal periods before the tenth

21

hour of a shift.

22

is not facially unlawful; it states that “breaks are allowed in

23

the morning and/or afternoon according to applicable state

24

laws.”

25

moving brief that he was not alleging Defendants maintained a

26

facially non-compliant policy statement for its meal breaks at

27

the Wilmington Branch.

28

Zayers, 2017 WL 4990460 at *3; Pl.
First, Plaintiff contends Zayers is

Pl.

But the Wilmington Meal Period subclass does

This subclass involves claims concerning whether

Second, Defendants’ written policy before 2015

ECF No. 65-14.

Finally, Plaintiff concedes in his

Mem. at 8.

Plaintiff also argues Zayers is different than this case
17

1

because in Zayers, the plaintiff did not identify time sheets

2

where he was denied meal premiums, nor did he identify a single

3

instance where he or anyone else missed a meal break.

4

Br. at 6 (citing 2017 WL 4990460, at *3).

5

without a difference.

6

that time records showing some potential violation did not

7

suffice to show a common policy and practice of unlawfully

8

failing to provide meal breaks.

9
10

Pl. Supp.

This is a distinction

As stated above, the Ordonez court found

2013 WL 210223, at *7.

ii. Donning And Doffing Theory Of Liability
Plaintiff’s walking-time and donning/doffing theories also

11

cannot be resolved by common proof, since they are highly

12

specific.

13

employees claiming they used their meal periods to walk and don

14

and doff (see Taboada Decl. ¶ 6; Nunez Decl. ¶ 6), Defendants

15

respond with declarations from employees claiming they were

16

given options as to the amount of gear they could wear, when and

17

where they could remove it for breaks, and when and where they

18

could put it on when returning to work.

19

(“Flores Decl.”), ¶¶ 6-25, ECF No. 62-7; Decl. of Fernando

20

Garcia (“Garcia Decl.”), ¶¶ 6-26, ECF No. 62-8.

21

took each employee to put on and remove their safety gear and

22

where they did it would depend on each employee’s habits and the

23

specific tasks they were doing that day.

24

theories are not susceptible of common proof.

25

Hollywood Med. Ctr., No. 12-cv-07559, 2013 WL 5775129, at *8

26

(C.D. Cal. Oct. 25, 2013) (“There is no way to determine ‘in one

27

stroke’ whether a particular break for a particular putative

28

class member was interrupted and to what degree.”) (internal

While Plaintiff provides declarations from former

18

Decl. of Edgar Flores

How long it

So Plaintiff’s
Roth v. CHA

1

citation omitted).

2

Because Plaintiff has failed to allege a policy and

3

practice capable of determining Defendants’ liability on a

4

class-wide basis, the Court finds he has not satisfied the

5

commonality element and denies certification of the Wilmington

6

Meal Period subclass.

7

3.

8
9

Wilmington Auto-Deduct Subclass

Plaintiff contends Defendants maintained an unlawful policy
and practice of automatically deducting 30 minutes of pay from

10

its employees’ daily hours for meal periods at the Wilmington

11

Branch, regardless of whether employees were working during

12

periods of time that the operations should have ceased.

13

4.

14

requirements to pay an additional hour of compensation for

15

missed meal periods, and to provide accurate wage statements in

16

violation of Wage Order 8 and Cal. Labor Code §§ 201-203, 226.7,

17

510 and 512.

18

Mot. at

Plaintiff asserts that this policy and practice violated the

Mot. at 4; Mem. at 10-11.

To support his claims, Plaintiff points to Defendants’ time

19

clock data for the Wilmington Branch indicating automatic

20

deductions of 30-minute meal periods when the time keeping did

21

not indicate a punch-out, punch-in for a meal.

22

(citing Woolfson Decl. at ¶ 21(c)).

23

expert found that there were 9,254 shifts, worked by 121

24

employees, reflecting a 30 minute meal period-auto-deduction,

25

occurring when an employee worked a shift greater than 6 hours,

26

up to 10 hours, and there was no punch in and punch out for a

27

meal period.

28

Mem. at 3

Specifically, Plaintiff’s

Mem. at 11 (citing Woolfson Decl. at ¶ 21(c)-(d)).

In practice, Defendants’ production workers take meal
19

1

breaks together when the Wilmington Branch ceases operations,

2

but mechanics continue working.

3

Juan Rivas (“Rivas Dep.”) at 19:4-20, ECF No. 58-5.

4

employees also testify that they are casual about punching out

5

and punching in for meal breaks.

6

(“Gonzalez Decl.”), ¶¶ 28-32, ECF No. 62-4; Rivas Decl. ¶¶ 44-

7

47; Gombos Decl. ¶ 6.

8

a human resources employee investigating whether meal periods

9

were provided.

Palau Decl., Ex. 4, Dep. of
Defendants’

Decl. of Esther Gonzalez

Defendants’ policy and practice involves

The investigation was conducted only for those

10

shifts where no meal break punches had been recorded and the

11

employee authorized removal of 30 minutes of pay only in the

12

absence of “affirmative information that the meal break had

13

actually been missed.”

14

72; see also Gonzalez Decl., ¶¶ 3, 31-41.

15

accounting manager, Esther Gonzalez has performed this function

16

at the Wilmington Branch since November 2011, and declared that

17

she has reviewed the time records to authorize removals of 30

18

minutes of pay from employees’ time sheets.

19

¶¶ 3, 31-41.

20

Opp. at 6; Defs. Supp. Br. at 3, ECF No.
Defendants’

Gonzalez Decl. at

Gonzalez also testified in her declaration that “no

21

production employee, mechanic, supervisor, manager, or any other

22

employee has ever given [her] information that there was an

23

improper missed, late, or short meal break.”

24

¶ 41.

25

meal period premium has ever been paid at the Wilmington Branch.

26

Mem. at 2 (citing Gonzalez Dep. at 29:25-30:16); see Opp.; see

27

Defs. Supp. Br.

28

Gonzalez Decl. at

Plaintiff claims, and Defendant does not dispute, that no

Auto-deduction policies involve deducting time from
20

1

employees’ time sheets without maintaining records to support

2

those deductions, on the assumption that employees always take

3

meal breaks.

4

employer’s supervisors may correct employees’ time sheets and

5

remove deductions upon learning that employees did not take a

6

break, no individual inquiries are necessary if such corrections

7

to deductions are “extremely rare.”

8

deduction subclass “can be certified where [the plaintiff]

9

presents evidence that the employer did not communicate to

Wilson, 2017 WL 1758048, at *2, 7-11.

Even if an

See id., at *11.

An auto-

10

employees the fact that auto-deduct could be manually reversed

11

or that the employer did not actually implement such reversals.”

12

Wilson, 2017 WL 1758048, at *9.

13

Certification of an auto-deduction subclass is distinct

14

from certification of a rest or meal break subclass because

15

individualized issues more readily predominate in meal and rest

16

break claims.

17

Washington v. Joe’s Crab Shack, 271 F.R.D. 629, 641-42 (N.D.

18

Cal. 2010); Jasper v. C.R. England, Inc., No. CV08-5266, 2009 WL

19

873360, at *5 (C.D. Cal. Mar. 30, 2009); Brown v. Fed. Express

20

Corp., 249 F.R.D. 580, 586 (C.D. Cal. 2008); Kimoto v.

21

McDonald’s Corps., No. CV 06-3032, 2008 WL 4690536, at *6 (C.D.

22

Cal. Aug. 19, 2008); Lanzarone v. Guardsmark Holdings, Inc., No.

23

CV06-1136, 2006 WL 4393465, at *4 (C.D. Cal. Sept. 7, 2006)).

24

Citing to time records may fail to support a meal period

25

subclass’s claim because those time records may suggest numerous

26

possibilities as to why certain employees may have had a non-

27

compliant meal break.

28

records showing numerous deductions for meal periods without

See Wilson, 2017 WL 1758048, at *7 (citing

Ordonez, 2013 WL 210223, at *7.

21

But time

1

supporting records can support an auto-deduction subclass’s

2

claims where reversals of those deductions are extremely rare.

3

Wilson, 2017 WL 1758048, at *9.

4

As explained above, numerous district courts have applied

5

Justice Werdegar’s reasoning from Brinker and found that a

6

rebuttable presumption exists that an employer’s failure to keep

7

timekeeping records of meal breaks suggests the employee was not

8

relieved of duty and no meal period was provided.

9

Cal. 4th at 1053 (Werdegar, J., conc.).

Brinker, 53

Defendants still argue

10

that this presumption is not the law, citing Serrano v. Aerotek,

11

Inc., 21 Cal. App. 5th 773, 781 (2018) to support their

12

argument.

13

In Serrano, the California Court of Appeal rejected the

14

plaintiff’s contention that “time records show[ing] late and

15

missed meal periods creat[ed] a presumption of violations” and

16

did not specifically address the presumption from Justice

17

Werdegar’s opinion.

18

stand for the proposition that the presumption from Justice

19

Werdegar’s concurrence cannot be applied as valid law, as

20

Defendants claim.

21

Rule 23 and has limited persuasive value for that reason alone.

22

Defs. Supp. Br. at 3.

23

(citing Arnold, 158 F.R.D. at 444 in distinguishing Wilson from

24

Safeway, 238 Cal. App. 4th 1138 (noting “differences between

25

[California] state court’s class certification and the

26

certification sought on [Rule 23] motion”)).

27

the extent Serrano implicitly questions the persuasive value of

28

the rebuttable presumption from Justice Werdegar’s concurrence

Id.

This language from Serrano does not

Serrano did not involve a class action under

See Wilson, 2017 WL 1758048, at *7-11

22

Furthermore, to

1

in Brinker, this contradicts the analysis from the federal

2

district courts that have applied the presumption as persuasive

3

authority.

4

2014 WL 5877695, at *7; Ordonez, 2013 WL 210223, at n.9.

5

Court rejects Defendants’ contention that it should refrain from

6

applying the rebuttable presumption found in Justice Werdegar’s

7

concurrence in Brinker.

8

See e.g., Morales, 2018 WL 1638887, at *5; Brewer,

a.

9

The

Commonality

Plaintiff asserts that the common question of fact with

10

respect to this subclass is whether Defendants maintained a

11

policy that automatically deducted a 30 minute meal period from

12

workers regardless of whether they took a meal period.

13

11.

14

class-wide basis through Defendants’ timekeeping records, class

15

member declarations, and Defendants’ 30(b)(6) testimony.

16

The Court agrees.

17

Mem. at

Plaintiff contends this question can be resolved on a

Id.

In Wilson, 2017 WL 1758048, at *7-11 (N.D. Cal. Feb. 9,

18

2017), the court certified an auto-deduction meal period

19

subclass where their payroll system was programmed to deduct 30

20

minutes for a meal period unless it was changed by a supervisor.

21

The defendants in that case argued that they never paid

22

additional compensation to employees in lieu of missed meal

23

breaks because employees always received their meal breaks.

24

at *11.

25

overridden an auto-deduction on one occasion.

26

Court found the defendants’ “assertion is insufficient to defeat

27

certification” and found that the plaintiffs’ claims of the

28

auto-deduction policy, combined with the employer’s extremely

Id.

Further, the defendants’ supervisors had only

23

Id. at *2.

The

1

rare corrections to employees’ time sheets and never paying meal

2

period premiums, sufficed to satisfy the commonality and

3

predominance requirements.

4

Id.

Besides Wilson, other courts have also found auto-deduction

5

subclasses satisfy the commonality requirement.

In Villa v.

6

United Site Servs. Of California, Inc., No. 5:12-cv-00318, 2012

7

WL 5503550, at *6 (N.D. Cal. Nov. 13, 2012), the Northern

8

District Court held that “[t]hough there may be divergent

9

factual predicates concerning how th[e] [auto-deduct] policy

10

affected different employees, it does raise shared legal issues,

11

which is all that is required to satisfy the commonality

12

requirement of Rule 23(a)”) (citing Hanlon, 150 F.3d at 1019).

13

In Harp v. Starline Tours of Hollywood, Inc., No. 14-cv-07704,

14

2015 WL 4589736, at *6 (S.D. Cal. Jul. 27, 2015), the Southern

15

District Court conditionally certified an auto-deduction

16

subclass in a Fair Labor Standards Act (“FLSA”) case where the

17

plaintiff presented evidence that the employer did not implement

18

any reversals of the automatic deduction policy.

19

case involved certification under the FLSA and not Rule 23, the

20

Wilson court applied its reasoning to its Rule 23 analysis.

21

Although this

Defendants attempt to distinguish Wilson by claiming that

22

most of the employees at the Wilmington Branch did clock in and

23

out.

24

how this fact negates all of the other deductions that were made

25

when the employees did not clock in or out for their meals.

26

Defs. Supp. Br.

27

fails.

28

See Defs. Supp. Br. at 3.

But Defendants fail to explain

See

Defendants’ attempt to distinguish Wilson

Defendants also argue their practice does not constitute an
24

1

auto-deduction policy, since the account manager has to review

2

payroll records before affecting a deduction of 30 minutes of

3

pay from employees’ time sheets.

4

at 3-5.

5

case process, like the one in Ramirez v. United Rentals, Inc.,

6

No. 10-cv-04374, 2013 WL 2646648 (N.D. Cal. Jun. 12, 2013).

7

Defs. Supp. Br. at 4-5.

8

certification and found the deduction policy was lawful because

9

managers exercised discretion over whether to use it and not all

See Opp. at 6; Defs. Supp. Br.

Defendants claim this is an individualized, case-by-

In Ramirez, the Court denied

10

managers automatically deducted time for meal breaks.

11

2646648, at *1, 4-5.

12

Gonzalez exercised appears illusory.

13

shifts at the Wilmington Branch during the class period that

14

show a 30 minute deduction without supporting records, Gonzalez

15

testified that nobody has ever claimed that they did not receive

16

an improper meal period.

17

hard to reconcile with Defendants’ time records showing more

18

than 9,000 deductions without supporting records.

19

points out, the accounting manager’s claim that she never had to

20

alter any of these 9,000 deductions is suspect.

21

at 2.

2013 WL

But here, the discretion Defendants claim
Despite there being 9,254

Gonzalez Decl., ¶ 41.

This claim is

As Plaintiff

Pl. Supp. Br.

22

While Defendants did not implement a computer program to

23

commit an auto-deduction practice, the evidence suggests they

24

implemented an automatic deduction practice where their human

25

resources employee subtracted pay from employees 100% of the

26

time, without any records showing meal periods were actually

27

taken.

28

on its head and put the onus on employees to prove they have

Defendants may not flip Justice Werdegar’s presumption

25

1

been denied a proper meal period when there are no records of

2

meal periods being provided.

3

(Werdegar, J., conc.).

4

procedures effectively constitute an improper auto-deduction

5

practice.

6

See Brinker, 53 Cal. 4th at 1053

The Court finds that Defendants’

Finally, Defendants rely on Juarez v. Unified, Ltd., 2013

7

Cal. Super. LEXIS 529, at *11 (Cal. Super. Ct. Feb. 22, 2013)

8

for the proposition that “[t]he existence of a class-wide auto-

9

deduct policy, by itself, does not create commonality with

10

respect to unpaid wages.”

11

tentative (not final) ruling by a state trial court, and thus

12

has little persuasive authority in this Court.

13

LEXIS 529.

Opp. at 7.

Juarez appears to be a

2013 Cal. Super.

14

The Court finds it can resolve on a class-wide basis

15

whether Defendants maintained a policy that automatically

16

deducted a 30 minute meal period from workers regardless of

17

whether they took a meal break through Defendants’ timekeeping

18

records, class member declarations, and Defendants’ 30(b)(6)

19

testimony.

20

the Wilmington Auto-Deduct subclass.

Plaintiff has satisfied the commonality element for

21

b.

Numerosity

22

In their opposition, Defendants argued that Plaintiff

23

failed to set forth any evidence to meet his burden that a

24

Wilmington “auto-deduct” subclass would be “so numerous that

25

joinder of all members is impracticable.”

26

Fed. R. Civ. P. 23(a)(1)).

27

employees who had shifts reflecting a 30 minute meal period

28

auto-deduction.

Opp. at 7-8 (citing

Mem. at 10.

But Plaintiff has identified 121

A proposed subclass of 121
26

1

employees satisfies the numerosity requirement.

2

Home Appliances Corp., 289 F.R.D. 466, 473 (citing Jordan v. Los

3

Angeles Cty., 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on

4

other grounds by Cty. of Los Angeles v. Jordan, 459 U.S. 810

5

(1982)) (ruling that each of the five subclasses satisfied the

6

numerosity rule because they contained at least forty members).

7

c.

8
9

See Tait v. BSH

Typicality

Plaintiff argues that, even though he did not work at the
Wilmington location, his claims are typical of the Wilmington

10

Auto-Deduct subclass because he has also experienced auto-

11

deducted meals.

12

result, he asserts the same legal theories inherent in the

13

proposed Auto-Deduct subclass.

14

Daily News, Inc., 231 F.R.D. 602, 608 (C.D. Cal. 2005), modified

15

on other grounds in Wang v. Chinese Daily News, Inc., 737 F.3d

16

538 (9th Cir. 2013) (“Since the named Plaintiffs raise the same

17

Labor Code violations as other putative class members, their

18

claims are typical of the class.”)).

Mem. at 12.

Plaintiff reasons that, as a

Id. (citing Wang v. Chinese

19

Defendants respond that because Plaintiff worked at the

20

Stockton Branch, where employees were not instructed to clock in

21

and clock out for their meal periods, he cannot show he was

22

personally injured by the alleged auto-deduction practices at

23

Wilmington.

24

Plaintiff’s claims cannot be typical of the Wilmington Auto-

25

Deduct subclass’s, citing Chavez v. Amerigas Propane, Inc., No.

26

CV 13-05813, 2015 WL 12859721 (C.D. Cal. Feb. 11, 2015).

27

at 8.

28

have standing to represent a class of employees who did not

Opp. at 8.

Defendants reason that this means

Opp.

In Chavez, though, the Court found the plaintiff did not

27

1

receive a third rest period when working longer than ten hours

2

in one day because the plaintiff did not show that he ever

3

worked more than ten hours in one day.

4

contrast, here, Plaintiff has adduced evidence showing he

5

received 74 automatic deductions at Stockton during the class

6

period.

7

¶ 13, ECF No. 65-7.

8

Plaintiff has alleged personal injury from the same auto-

9

deduction practices he has alleged Defendants used at either

10

location, even if the specific meal period instructions were

11

different at the two locations.

12

Id. at *18.

In

Supp. Decl. of Aaron Woolfson (“Woolfson Supp. Decl.”),
So, unlike the plaintiff in Chavez,

See SAC, ¶¶ 31, 37, 44, 55, 68.

In addition, Plaintiff is not tasked with showing that his

13

claims are the exact same as the proposed subclass’s, but only

14

that each member’s claim arises from the same course of events

15

and that each class member will make similar legal arguments to

16

prove Defendants’ liability.

17

Plaintiff has satisfied that burden for the Wilmington Auto-

18

Deduct subclass here: he has alleged injury by Defendants’

19

alleged auto-deduction policies and will make similar legal

20

arguments as other class members (i.e., arguing Justice

21

Werdegar’s presumption from Brinker applies where Defendants did

22

not keep records of employee meal breaks).

23

Plaintiff has satisfied this element for the Wilmington Auto-

24

Deduct subclass.

25
26

4.

Armstrong, 275 F.3d at 868.

The Court finds

Adequacy

Defendants argue Plaintiff failed to establish legal

27

adequacy because of “conflicts of interest,” including “ethical

28

and fiduciary conflicts in having to choose between class
28

1

members who seek to establish statutory violations and those who

2

seek to avoid findings that they are guilty of criminal or civil

3

wrongdoing.”

4

rests on the assumption that Plaintiff seeks to represent both

5

non-exempt supervisors and non-exempt employees whom those

6

supervisors oversaw.

7

support this claim are inapposite.

8
9

Opp. at 14-15.

See id.

Defendants’ conflicts argument

The cases Defendants rely upon to

In Mateo v. V.F. Corp., No. C 08-05313, 2009 WL 3561539, at
*5 (N.D. Cal. Oct. 27, 2009), the Court found the named

10

plaintiff did not satisfy the adequacy requirement because she

11

herself had management responsibilities, meaning she would have

12

unique defenses from other class members.

13

evidence here does not suggest Plaintiff was a supervisor who

14

would have unique defenses from other class members.

15

v. WincCo Foods, No. CV 11-00644, 2012 WL 34483, at *7 (C.D.

16

Cal. Jan. 4, 2012), the court found the defendants had shown an

17

existing conflict in the class by pointing to the plaintiffs

18

testifying in their depositions that their “Department Managers”

19

(who were non-exempt) “bore significant responsibility for” not

20

providing their meal breaks.

21

cited any evidence or allegations by Plaintiff that charge

22

potential class members with significant responsibility for

23

Defendants’ violations.

24

neither of these cases involved a proposed auto-deduction

25

subclass such as the one here, where a fact-finder can defer to

26

Defendants’ electronic time records and the employer’s testimony

27

about their auto-deduction policies and practices.

28

2009 WL 3561539; Hughes, 2012 WL 34483.

In contrast, the

In Hughes

But here, Defendants have not

See Opp. at 14-15.

29

In addition,

See Mateo,

1

Plaintiff also responds to Defendants’ arguments by

2

emphasizing that he does not seek recovery against non-

3

supervisory employees and is suing Defendants for causing the

4

alleged violations through their policies and practices at the

5

Stockton and Wilmington Branches.

6

Reply at 5.

Defendants then argue that Plaintiff cannot satisfy the

7

adequacy element because he did not seek certification of any

8

minimum wage or overtime claims.

9

WD-40 Co., No. 06-CV-900, 2007 WL 2456003, at *3 (S.D. Cal. Aug.

Opp. at n.6 (citing Drimmer v.

10

24, 2007) (“A class representative is not an adequate

11

representative when the class representative abandons particular

12

remedies to the detriment of the class.”)).

13

because Drimmer did not involve minimum wage or overtime claims

14

and Defendants have provided no other authority holding that a

15

class-plaintiff fails to satisfy the adequacy element by not

16

pursuing minimum wage or overtime claims.

17

2456003; Opp.

18

This argument fails

See Drimmer, 2007 WL

Because Plaintiff and his counsel do not have conflicts of

19

interest with other class members and because they have

20

prosecuted this action vigorously on behalf of the class (and

21

presumably will continue to), the Court finds Plaintiff has

22

satisfied the adequacy element for the Wilmington Auto-Deduct

23

subclass.

24
25

See Hanlon, 150 F.3d at 1020.
5.

Predominance

Plaintiff contends he has satisfied this element for the

26

Wilmington Auto-Deduct subclass because liability can be

27

established through employer records and representative

28

testimony, while damages can be established through database
30

1

analysis, statistical sampling, and selective direct evidence.

2

See Mem. at 13; Pl. Supp. Br. at 5.

3

Defendants counter that individualized inquiries would

4

predominate for each of the more than 100 employees that were

5

affected by the auto-deductions, citing Gonzalez for the

6

proposition that meal periods missing from time sheets do not

7

conclusively show missing meal periods.

8

Gonzalez, 2012 US 5473764, at *5).

9

Gonzalez, however, applied to the meal period claims that the

See Opp. at 6-7 (citing

This proposition from

10

Gonzalez court analyzed.

11

6.

12

different from meal period claims in that individual inquiries

13

do not predominate where an employer implements an auto-

14

deduction policy and almost never makes corrections to employee

15

time sheets nor awards meal period premiums.

16

WL 1758048, at *7-11 (citing Washington, 271 F.R.D. at 641-42;

17

Jasper, 2009 WL 873360, at *5; Brown, 249 F.R.D. at 586; Kimoto,

18

2008 WL 4690536, at *6; Lanzarone, 2006 WL 4393465, at *4).

19

See Gonzalez, 2012 US 5473764, at *4-

As the Wilson court found, however, auto-deduct claims are

See Wilson, 2017

Plaintiff, like the plaintiffs in Wilson, has presented

20

evidence of employer’s effective auto-deduction policy and

21

practice through employee time records.

22

See Wilson, 2017 WL 1758048, at *7-11. Further, Defendants have

23

admitted that they have not once reversed an auto-deduction.

24

Gonzalez Decl., ¶ 41.

25

questions predominate over any individual inquiries for this

26

sub-class and Plaintiff has satisfied this element for the

27

Wilmington Auto-Deduct subclass.

28

///

Woolfson Decl. ¶ 19(i);

Accordingly, the Court finds common

31

1

6.

Superiority

2

Defendants contend that, because of the minimal support

3

from the putative class, a class action would not be superior to

4

individual actions or grievances brought by individual employees

5

through the California Division of Labor Standards and

6

Enforcement.

7

Certified Dairy, LLC, No. CV13-04846, 2014 WL 12479370 (C.D.

8

Cal. Jan. 30, 2014), to support their argument.

9

distinguishable for two reasons.

Opp. at n.7.

Defendants cite Romero v. Alta-Dena

Romero is

First, the court in Romero

10

ruled that a class action was not superior because the putative

11

class members were part of a union and could pursue their

12

grievances through their respective collective bargaining

13

agreements.

14

and have not presented any evidence that the employees are

15

unionized.

16

on whether resolving auto-deduction claims on a class-wide basis

17

is superior to separate individual actions.

18

resolving the auto-deduction subclass on a class-wide basis

19

would be superior since the timesheets provide common proof and

20

it would be more efficient to do one large study of the

21

timesheets than separate individual ones.

22

do not explain why or how the support Plaintiff has from the

23

putative class is “minimal” or why that means adjudicating the

24

auto-deduction claims on a class-wide basis is not superior.

25

See Opp.

26

superiority of resolving the Wilmington Auto-Deduct subclass’s

27

claims on a class-wide basis.

28

///

Id. at *2.

See Opp.

Defendants in this case do not claim

Second, the court in Romero did not rule

Here, however,

Finally, Defendants

The Court finds Plaintiff has adequately shown the

32

1

7.

Trial Plan

2

Defendants claim Plaintiff’s motion must be denied because

3

he has not submitted a workable trial plan and his proposal for

4

manageably trying this action with three subclasses fails.

5

at 13-14.

6

suggestions are an improper trial by formula, where his case

7

would be tried through his own testimony and that “of his own

8

biased declarants, through time records that courts have

9

consistently held do not tell the whole story of whether an

10

Opp.

Defendants further contend that Plaintiff’s

employee was provided a proper meal period [.]”

Id.

11

To support their argument, Defendants cite footnote ten

12

from Galvan v. KDI Distrib., No. CV 08-0999, 2011 WL 5116585

13

(C.D. Cal. Oct. 25, 2011).

14

plaintiff had presented a workable trial plan when his counsel

15

represented that he would prove claims relying “almost

16

exclusively on the documents and testimony that have been and

17

will be provided by [defendant]” and that he would use expert

18

testimony to analyze those documents and show how they supported

19

the plaintiff’s claims.

20

Plaintiff’s case and the Wilmington Auto-Deduct subclass (the

21

only one the Court will certify).

22

claims can be resolved through Plaintiff’s counsel’s

23

presentation of the time records and Woolfson’s analysis of

24

those time records.

25

certification should be denied because Plaintiff has failed to

26

submit a workable trial plan.

27
28

In Galvan, the Court found the

Id., at *12.

The same is true here for

Plaintiff and the subclass’s

The Court rejects Defendants’ argument that

Plaintiff has satisfied all of the Rule 23 elements for the
Wilmington Auto-Deduct subclass.
33

His motion to certify this

1

subclass is granted.

2

D.

3

Defendants and Plaintiff assert a number of evidentiary

Evidentiary Objections

4

objections to the other party’s declarations, both expert and

5

non-expert.

6

turn.

7

1.

ECF Nos. 63, 65-1-6.

The Court will address them in

Plaintiff’s Request to Strike

8

Plaintiff requests striking the declarations of Ramses

9

Herrera, Kristian Cortes, and Jorge Mena because Defendants

10

failed to disclose any of them pursuant to Federal Rule of Civil

11

Procedure 26.

12

Pls. Objs., ECF No. 65-2.

A party failing to make the required initial disclosure “is

13

not allowed to use that information or witness to supply

14

evidence on a motion, at a hearing, or at trial unless the

15

failure was substantially justified or is harmless.”

16

Civ. P. 37(c)(1); Yeti By Molly, Ltd. V. Deckers Outdoor Corp.,

17

259 F.3d 1101, 1106 (9th Cir. 2001).

18

Fed. R.

Plaintiffs assert that neither Defendants’ Rule 26

19

disclosures, nor any of the aforementioned class member name and

20

contact lists produced by Defendants during discovery included

21

the names and contact information for putative class members

22

Ramses Herrera, Kristian Cortes, and Jorge Mena.

23

(citing Supp. Decl. of Marco Palau, ¶ 3).

24

did not make these names and contact information available to

25

Plaintiffs before filing their opposition, the Court grants

26

Plaintiff’s request to strike these declarations and has not

27

considered them in ruling on this motion.

28

///
34

Pls. Obj.

Because Defendants

1

2.

Non-Expert Declarations

2

Plaintiffs also object to the declarations of Frederico

3

Delgado Arroyo, Reyes Atrian, Kristian Cortes, Edgar Flores,

4

Fernando Garcia, Jorge Mena, John Gombos, Angel Gomez, Esther

5

Gonzalez, and Juan Rivas.

6

Defendants object to the declarations of Arturo Flores, David

7

Nunez, Diego Taboada, Marco A. Palau, Miguel Rojas-Cifuentes,

8

Travis Wilson.

9

explained above, the Court has not considered the stricken

10
11

Pl. Objs., ECF Nos. 65-2-6.

Def Objs., ECF Nos. 63-1-4 and 63-6-7.

As

declarations of Kristian Cortes and Jorge Mena.
In general, strict adherence to the Federal Rules of

12

Evidence is not a prerequisite for class certification and courts

13

may consider inadmissible evidence in determining whether to

14

certify a class.

15

(internal citations omitted) (denying plaintiff’s objections

16

because the court could consider inadmissible evidence); see also

17

Brooks v. Darling Int’l., 14-cv-01228, 2017 WL 1198542, at * 2-3

18

(E.D. Cal. Mar. 31, 2017) (citing Gonzalez v. Millard Mall Svcs.,

19

Inc., 281 F.R.D. 455, 459-60 (S.D. Cal. 2012) in denying motions

20

to strike data sheets that were neither notarized nor signed

21

under penalty of perjury).

22

Smith v. Microsoft Corp., 297 F.R.D. 464, 474

Because the Court may consider inadmissible evidence in

23

determining whether to certify a class, it overrules both

24

parties’ objections to the non-expert declarations in toto.

25

Smith, 297 F.R.D. 464, 474.

26
27
28

3.

See

Woolfson Declaration

Defendants argue Plaintiff’s expert’s declaration should be
stricken because his report did not provide a list of all other
35

1

cases in which he testified as an expert in the previous four

2

years.

3

objections to specific parts of Woolfson’s declaration.

4

Objs. At 3-9.

5

Defs. Obj., ECF 63-5.

Defendants also make a number of
Defs.

Where expert testimony is introduced in support of a motion

6

for class certification, the Court must act as a gatekeeper to

7

exclude junk science by making sure that testimony is reliable

8

and not speculative or irrelevant.

9

(internal citation and quotation marks omitted). 3

Smith, 297 F.R.D. 464

10

District courts apply the Daubert v. Merrell Down Pharms.,

11

Inc., 509 U.S. 579, 597, (1993) analysis in determining motions

12

to strike expert declarations.

13

657 F.3d 970, 982 (9th Cir. 2011).

14

considering whether (1) the reasoning or methodology underlying

15

the testimony is scientifically valid; and (2) whether the

16

reasoning or methodology properly can be applied to the facts at

17

issue.

18

Ellis v. Costco Wholesale Corp.,
This analysis requires

Daubert, 509 U.S. at 592-93.

Woolfson provided in his declaration a comprehensive list

19

of the different cases where his work has been used.

20

Woolfson Decl. at 2-4; Woolfson Decl. Ex. A, ECF No. 60-2.

21

Court rejects Defendants’ request to strike Woolfson’s

22

declaration on this basis.

23

See
The

Defendants also argue that Woolfson’s declaration should be

24

stricken because he made (and concedes he made) a coding error

25

3

26
27
28

Neither the San Diego Comic Convention v. Dan Farr Prods., 14cv-1865, 2017 WL 4005149 case that Defendants rely on nor its
superseding opinion, 2017 WL 4227000, involved a motion for class
certification. So the Court has not applied the case’s
evidentiary analyses in resolving the party’s expert witness
objections here.
36

1

that led to him identifying almost four times as many shifts

2

with a recorded meal break after the fifth hour than the

3

timekeeping data suggests.

4

portion of Woolfson’s deposition that Defendants cite does not

5

suggest he concedes he made a coding error.

6

Decl., Depo. of Aaron Woolfson, at 40:6-25, ECF No. 62-16.

7

During the deposition, Woolfson was asked “is the purpose of the

8

snippet that we see that you are trying to count instances where

9

a meal break was recorded after the end of the fifth hour? ‘A:

See Defs. Obj. at 3-9.

First, the

Ex. D to Gomez

10

No.’”

11

the referenced snippet just represented shifts that were greater

12

than five hours.

13

deposition, it seems Woolfson specifically denied that he made

14

the so called “error” on a portion of the “snippet” Defendants

15

were referring to.

16

specifically reference the snippet on which this alleged error

17

was made.

18

Id. at 40:6-10.

Woolfson then went on to explain that

Id. at 40:12-25.

In the context of the

Defendants also do not appear to

See Defs. Obj.

In addition, Defendants’ expert’s declaration does not

19

convince the Court that Woolfson made a coding error.

20

Defendant’s expert, Robert W. Crandall, testifies that Woolfson

21

“committed a coding error” but does not specifically explain

22

what the error was.

23

No. 62-11.

24

review of the timekeeping data reveals 75% fewer shifts where a

25

meal break was recorded after the fifth hour, without

26

highlighting where in the timesheet he sees this.

27

also did not explain how the alleged coding error led Woolfson

28

to err in reporting that there were 9,254 shifts worked by 121

See Decl. of Robert W. Crandall, ¶ 20, ECF

Instead, he states in a conclusory fashion that his

37

Id.

Crandall

1

employees that showed an auto-deduction.

2

Decl., ¶ 21-b.

3

Woolfson’s declaration on the basis of the alleged coding error.

4

Finally, Defendants object to Woolfson’s declaration as

See id.; Woolfson

The Court denies Defendants’ request to Strike

5

being speculative or not supported by facts because he looked

6

for instances of the Wilmington Branch’s auto-deductions being

7

implemented.

8

Defendants cite Gonzalez’s testimony that she did a case-by-case

9

review of all employee time sheets before making a deduction.

Defs. Objs. at 7.

To support their argument,

10

See id.

11

100% of the time, so her testimony does not clearly undermine

12

the idea of an alleged auto-deduction policy.

13

rejects Defendants’ “vague, ambiguous, and uncertain”

14

objections—these objections are not related to Woolfson’s

15

qualifications as an expert and go to the weight of his evidence

16

rather than the admissibility.

17

As explained above, however, Gonzalez made a deduction

The Court also

See id. at 8.

The Court finds Woolfson’s testimony passes the Daubert

18

test because (1) he has explained how he structured Defendants’

19

time keeping data using various computer programs like Microsoft

20

SQL Query Analyzer, Microsoft Excel, and Microsoft Visual Studio

21

to generate his conclusions (see Woolfson Decl. at 7-14) and (2)

22

he has demonstrated experience in doing similar analyses in many

23

other class-action cases and in other contexts. See Woolfson

24

Decl. at 2-5.

25
26

4.

Crandall Declaration

Plaintiff objects to Crandall’s declaration, but does not

27

appear to seek to strike it on the basis of a lack of expert

28

qualifications.

Pl. Obj., ECF No. 65-1.
38

Plaintiff’s objections

1

are based on Crandall’s testimony purportedly being “legally

2

irrelevant, spurious, or logically unsound.”

3

These objections go to the weight of the evidence and not the

4

admissibility.

5

evidence in determining whether to certify a class, it overrules

6

Plaintiff’s objections to Crandall’s declaration.

7

297 F.R.D. 464, 474.

8
9

5.

Pl. Obj. at 1.

Because the Court may consider inadmissible

See Smith,

The ACX Break And Meal Period Schedule

Plaintiff also argues in footnote two of his reply that the

10

Court should “disregard the purported errata pages attached as

11

Exhibit A to the Declaration of Mr. Gomez, and consider the

12

excerpts of the Deposition of Esther Gonzalez as submitted.”

13

Reply at n.2.

14

discussing the purported typo on the ACX Break And Meal Period

15

Schedule which lists additional breaks after 12 hours instead of

16

10 hours.

17

that they did not receive any errata pages.

18

(citing Supp. Decl. of Marco A. Palau, Ex. 4, ECF No. 65-12).

19

Plaintiff’s argument is made in the context of

Plaintiff cites to a court reporting officer’s email
See Reply at n.2

First, Magana submitted the purported errata sheet and not

20

Gonzalez.

Second, as explained above, the ACX Break And Meal

21

Period Schedule is not a “smoking gun” document.

22

Court may consider inadmissible evidence and denies Plaintiff’s

23

request to disregard the purported errata pages.

24

F.R.D. 464, 474.

25

dispositive to its ruling on this motion.

Again, the

See Smith, 297

But the Court notes this decision is not

26
27
28

III.

ORDER

For the reasons set forth above, the Court GRANTS
39

1

Plaintiff’s motion to certify the subclass identified by

2

Plaintiff as the “Wilmington Auto-Deduct Class.”

3

DENIES Plaintiff’s motion to certify either of the other two

4

proposed subclasses.

5

The Court

IT IS FURTHER ORDERED that Plaintiff Miguel Rojas-Cifuentes

6

is appointed Class Representative, and Mallison & Martinez is

7

appointed as Class Counsel.

8

IT IS SO ORDERED.

9

Dated: May 17, 2018

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