Morales et al v. Leggett & Platt Incorporated et al

Filing 51

ORDER signed by District Judge John A. Mendez on 4/5/2018 GRANTING IN PART and DENYING IN PART 33 Motion for Class Certification and Appointment of Class Counsel. The Court GRANTS Plaintiffs' motion to certify the two subclasses identifi ed by Plaintiffs as the "Doubletime Class" and the "30 Minute Auto-Deduction Class". The Court DENIES Plaintiffs' motion to certify any of the other proposed subclasses. IT IS FURTHER ORDERED that Plaintiffs Edgar Morales, Salvador Magana, and Matthew Bagu are appointed Class Representatives, and Mallison & Martinez is appointed as Class Counsel. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Edgar Morales, Salvador
Magaña, and Matthew Bagu, on
behalf of themselves, the
State of California, and all
other similarly situated
individuals,

No.

2:15-cv-01911-JAM-EFB

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
AND APPOINTMENT OF CLASS COUNSEL

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Plaintiffs,
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v.
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Leggett & Platt Incorporated,
a Missouri Corporation, et
al.

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Defendants.
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Plaintiffs Edgar Morales (“Morales”), Salvador Magaña

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(“Magaña”), and Matthew Bagu (“Bagu”) (collectively,

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“Plaintiffs”) move for class certification under Rule 23 of the

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Federal Rules of Civil Procedure.

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No. 34.

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L&P Financial Services Co. (“L&P”) (collectively, “Defendants”)

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oppose Plaintiffs’ motion.

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was held on February 27, 2018.

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and stated at the hearing, the Court grants Plaintiffs’ motion

Mot., ECF No. 33; Mem., ECF

Defendants Leggett & Platt Incorporated (“Leggett”) and

ECF No. 44.

A hearing on this motion

For the reasons set forth below

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for class certification as to two purported subclasses, and

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denies the motion as to the remaining three purported subclasses.

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The Court also grants Plaintiffs’ unopposed request

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regarding appointment of counsel and class representatives in

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this case.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Morales worked at Defendants’ Tracy location (the

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“Tracy Branch”) from 2011-2014 as a forklift operator, peeler

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operator, and maintenance mechanic and was paid hourly.

Decl. of

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Edgar Morales (“Morales Decl.”), ECF No. 33-47, ¶ 3.

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Magaña worked at the Tracy Branch from 2012-2014 as a maintenance

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mechanic and was paid hourly.

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Decl.”), ECF No. 33-46, ¶ 3.

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Branch from 2013-2014 as a mold operator and was paid hourly.

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Decl. of Matthew Bagu (“Bagu Decl.”), ECF No. 33-48, ¶ 3.

Plaintiff

Decl. of Salvador Magaña (“Magaña
Plaintiff Bagu worked at the Tracy

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On April 28, 2015, Plaintiffs Morales and Magaña filed their

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initial Complaint against Defendant Leggett in San Joaquin County

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Superior Court.

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22, 2015, Plaintiffs Morales and Magaña and additional Plaintiff

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Bagu added Defendant L&P as a second defendant and filed a First

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Amended Complaint (the “FAC”), seeking to proceed under the

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

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alleging Defendants violated state wage and hour laws by failing

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to pay minimum wage; failing to pay overtime compensation;

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failing to provide meal and rest breaks; unlawfully deducting

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wages of employees; knowingly and intentionally failing to

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maintain and provide accurate wage statements; failing to produce

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or permit inspection of records; failing to timely pay wages due

Pls. Class Action Compl., ECF No. 1-1.

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On July

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at termination; and failing to indemnify employees for work

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expenses.

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that Defendants violated California’s Unfair Competition Law

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(“UCL”).

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FAC, ECF No. 1-2, ¶¶ 16, 108.

Plaintiffs also alleged

Id., ¶¶ 106-114.

Defendants removed Plaintiffs’ claims to federal court under

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the Class Action Fairness Act, 28 U.S.C. § 1332(d), on September

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10, 2012.

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2017, Plaintiffs filed their Motion for Class Certification and

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brief in support.

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Not. of Removal, ECF No. 1, at 1-2.

On November 6,

After the February 27, 2018 hearing on this motion,

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Plaintiffs filed a Notice of Subsequent Relevant Authority (ECF

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No. 49) and Defendants responded.

ECF No. 50.

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II.

OPINION

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A.

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Plaintiffs seek to certify the following five subclasses:

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Proposed Subclasses

1.

The Revision Zone Class

All nonexempt hourly employees who worked at the Tracy

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Branch between April 28, 2011 and November 14, 2014 and whose

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time was recorded using the Amano timekeeping system and

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experienced time shaving as a result of the Revision Zone

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programming in the Amano timekeeping system.

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2.

Mot. 2-3.

Doubletime Class

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All non-exempt hourly employees who have worked at

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Defendants’ Ontario location (the “Ontario Branch”) and the

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Tracy Branch between April 28, 2011 and the present and had a

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shift of more than eight hours on a seventh consecutive workday

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in a workweek.

Mot. at 4.
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3.

30 Minute Auto-Deduction Class

All non-exempt hourly employees who have worked at the

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Tracy Branch, and all factory non-exempt hourly employees who

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have worked at the Ontario Branch between April 28, 2011 and the

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present who had 30 minutes of pay automatically deducted for

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meal periods without a corresponding time entry showing that an

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unpaid meal period was recorded.

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4.

Mot. at 4-5.

Meal Period Premium Class

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All factory non-exempt hourly employees who (1) have worked

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at the Ontario and Tracy Branches between April 28, 2011 and the

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present, (2) have recorded untimely or short meal periods during

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shifts greater than six hours, or have worked more than 10 hours

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without recording a second meal period, and (3) have not

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received a meal period premium.

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5.

Mot. at 5-6.

Uniform Deduction Class

All non-exempt employees who worked at the Ontario and

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Tracy Branches between April 28, 2011 and the present and had

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deductions on their wage statements (appearing in payroll as

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code 870) for maintenance of their work uniform.

Mot. at 6.

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Plaintiffs’ initially sought class certification of a sixth

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subclass, i.e. the Mechanics Class, but confirmed at the hearing

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on this motion that they had abandoned it.

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Reply, ECF No. 45.

Mot. at 6; see

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B.

Discussion

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Under Rule 23(a), a plaintiff seeking to certify a class

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

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

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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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must then satisfy one of the three Rule 23(b) categories. In the

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instant case, the parties focus on the “predominance” and

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“superiority” category under Rule 23(b)(3).

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The plaintiff

Failure to satisfy any element of Rule 23(a) or 23(b)

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requires denying class certification.

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& Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975).

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1.

Rutledge v. Electric Hose

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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of this requirement for any of the purported classes and the

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Court finds Plaintiffs satisfy the numerosity requirement for

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all five purported subclasses.

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Fed. R. Civ. P.

Defendants do not challenge Plaintiffs’ satisfaction

2.

See Opp.

Ascertainability

“As a threshold matter, and apart from the explicit

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requirements of Rule 23(a), the party seeking class

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certification must demonstrate that an identifiable and

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ascertainable class exists.”

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4776427, at *9 (N.D. Cal. Aug. 13, 2015) (quoting Sethavanish v.

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ZonePerfect Nutrition Co., No. 12-2907, 2014 WL 580696 (N.D.

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Cal. Feb. 13, 2014)).

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objective, and presently ascertainable,’ that is the class must

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be ‘definite enough that it is administratively feasible for the

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court to ascertain whether an individual is a member.’”

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CHA Hollywood Medical Center, L.P., No. 2:12-cv-07559, 2013 WL

Backhaut v. Apple Inc., 2015 WL

“A class definition should be ‘precise,

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Roth v.

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5775129, at *4 (C.D. Cal., Oct. 25, 2013) (quoting O’Connor v.

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Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998)).

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3.

Commonality

Commonality requires Plaintiffs to affirmatively show “that

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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

The class’s common
Id.

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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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4.

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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5.

“A class representative must be part of the class

Dukes, 131 S.Ct. at 2550 (citation omitted).

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

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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challenge Plaintiffs’ arguments with respect to this requirement

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

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Defendants do not

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for any of the purported subclasses and the Court finds

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Plaintiffs have satisfied the adequacy requirement for all five

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purported subclasses.

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6.

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See Opp.

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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944 (9th Cir. 2009) (internal quotation marks and citation

Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,

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omitted).

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classes are sufficiently cohesive to warrant adjudication by

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representation.

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623 (1997).

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The predominance criterion tests whether proposed

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Anchem Prods., Inc. v. Windsor, 521 U.S. 591,

Superiority

The final inquiry for certification is whether a class

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action is superior to other available methods for fairly and

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efficiently adjudicating the controversy.

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944.

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Vinole, 571 F.3d at

Defendants do not challenge Plaintiffs’ satisfaction of the

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superiority element for any of the purported subclasses.

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Court therefore finds Plaintiffs have satisfied this

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requirement for all five purported subclasses.

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C.

The

See Opp.

Analysis
1.

The Revision Zone Class

Plaintiffs contend that Defendants’ policy and practice of

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shaving up to 15 minutes of compensable work time using the

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Amano timekeeping system led to a failure to pay Defendants’

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employees for all the time they worked, in violation of
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California Labor Code § 1197, case law, and Wage Order 1.

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at 7-8 (citing 30(b)(6) Deposition Testimony of Michelle Wingo,

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ECF No. 33-3, at 128:17-129:5, 133:16-134:7, 134:17-23; Decl. of

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Aaron Woolfson, ECF No. 35, ¶ 18).

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Mem.

California Labor Code § 1197 provides, in relevant part,

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that “minimum wage for employees fixed by the commission ... is

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the minimum wage to be paid to employees, and the payment of a

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lower wage than the minimum so fixed is unlawful.”

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states, in relevant part, “[e]very employer shall pay to each

Wage Order 1

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employee, on the established payday for the period involved, not

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less than the applicable minimum wage for all hours worked in

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the payroll period, whether the remuneration is measured by

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time, piece, commission, or otherwise.”

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§ 11010, subd. 4(B).”

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a.

8 Cal. Code Regs.,

Commonality

Plaintiffs contend that “[t]he common question of fact to

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this class is whether Defendants failed to compensate class

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members at the minimum wage for all hours worked” and that this

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question can be answered by looking at Defendants’ Person Most

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Knowledgeable (“PMK”) testimony and an analysis of Defendants’

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payroll and timekeeping records.

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fail to explain how a factfinder can resolve, on a class-wide

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basis, whether each individual class-member actually performed

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compensable work in the time between when they clocked in and

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the start of their shift.

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determining whether Defendants failed to compensate a class

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member for all hours worked.

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Mem. at 8.

But Plaintiffs

Resolving this issue is necessary to

In contrast, Defendants have provided declarations from
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several employees stating that they do not perform compensable

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work during the shaved time, and instead clock in and then wait

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for a paid safety meeting to start at the beginning of their

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shift.

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Decl.”), ECF No. 44-16, ¶ 15; Decl. of Peter Sirivan (“Sirivan

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Decl.”), ECF No. 44-20, ¶ 15; Decl. of Jesus Bautista (“Bautista

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Decl.”), ECF No. 44-8, ¶ 1; Decl. of Aaron Aguayo (“Aguayo

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Decl.”), ECF No. 44-6, ¶ 14; Decl. of Richard Ulloa (“Ulloa

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Decl.”), ECF No. 44-22, ¶ 13; Decl. of Paco Galvan (“Galvan

Opp. at 6-7 (citing Decl. of Jaasiel Picos (“Picos

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Decl.”), ECF No. 44-9, ¶ 14; Decl. of Isaac Williams (“Williams

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Decl.”), ECF No. 44-23, ¶ 12).

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These declarations, regardless of their accuracy, affirm

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the individual nature of determining whether an employee

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performed compensable work in the time between when they clocked

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in and the start of their shift.

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who provided declarations in support of Plaintiffs’ motion

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testified that they actually performed compensable work in the

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time between when they clocked in and when they started their

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shift.

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Bagu, and Mike Aguilar, ECF Nos. 33-46-33-49; Decls. of Aaron

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Aguayo, Jesus Bautista, and Jaasiel Picos, ECF Nos. 45-3-45-5.

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Plaintiffs attached Richardson v. Interstate Hotels &

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Resorts, Inc., No. C 16-06772, 2018 WL 1258192 (N. D. Cal. Mar.

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12, 2018) to their Notice of Subsequent Relevant Authority in

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support of their motion.

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class whose time punches were rounded to the quarter hour for

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purposes of calculating wages, which, according to the plaintiff

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in that case, resulted in under-compensating employees.

Indeed, none of the employees

See Decls. of Salvador Magaña, Edgar Morales, Matthew

The court in Richardson certified a

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Id., at

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*5.

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worked in the time for which they were allegedly under-

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compensated.

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case and cannot be resolved on a class-wide basis, Richardson is

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distinguishable.

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But that court did not consider whether employees actually

See id.

Because that issue is crucial to this

The Revision Zone’s class contention that Defendants failed

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to compensate class members at the minimum wage for all hours

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worked cannot be resolved without an individual inquiry into

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whether each class member performed compensable work in the time

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between when they clocked in and the start of their shift.

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the Court cannot, and does not, grant class certification as to

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this subclass.

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moreover, must be of such a nature that it is capable of class-

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wide resolution—which means that determination of its truth or

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falsity will resolve an issue that is central to the validity of

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each one of the claims in one stroke.”)

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2.

So

Dukes, 564 U.S. at 350 (“That common contention,

The Doubletime Class

Plaintiffs contend that Defendants’ policy and practice

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through their Amano timekeeping system of not providing for

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doubletime premium pay (“Doubletime Pay”) after the 12th hour in

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a workday means that every shift over eight hours on the seventh

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consecutive workday in a workweek violates Cal. Labor Code § 510

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and Wage Order 1.

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Mot. at 4; Mem. at 3, 8.

Wage Order 1 provides that employees must receive “[d]ouble

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the employee’s regular rate of pay for all hours worked in

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excess of 12 hours in any workday and for all hours worked in

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excess of eight (8) hours on the seventh (7th) consecutive day

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of work in a workweek.”

8 Cal. Code Regs., § 1101, subd. 3(A).
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When an employee works more than eight hours in one “workday,”

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more than forty hours in one “workweek,” or for eight or fewer

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hours on the seventh day of the workweek, the employee is

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entitled to receive compensation at one and one-half times the

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employee’s regular rate of pay.

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a.

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Cal. Lab. Code § 510(a).

Ascertainability

Plaintiffs contend that determining which employees were

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improperly denied Doubletime Pay can be ascertained by reviewing

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the Amano time records and payroll.

Reply at 2.

Defendants

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counter that it would be difficult for the Court to ascertain

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which individuals worked on a seventh consecutive workday in a

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workweek and, of those, which worked more than 8 hours and, of

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those, who was not paid at the rate of twice the regular rate of

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pay.

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5775129, at *4, to support their argument is misplaced.

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Roth, the court found the plaintiffs’ purported classes

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unascertainable.

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have had to first apply Brinker v. Sup. Ct., 53 Cal. 4th 1004,

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1053 (2012) (Werdegar, J., conc.) to make a legal determination

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of whether meal and rest break periods were actually provided to

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employees to then ascertain class members, a cart-before-the-

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horse problem.

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defendant in that case argued that payroll records would not

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reveal whether employees took meal or rest breaks since

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employees did not clock out for rest breaks and meal breaks were

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sometimes not taken by employees.

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Opp. at 3-4.

Defendants’ reliance on Roth, 2013 WL

Id., at *5.

In

The court reasoned that it would

Roth, 2013 WL 5775129, at *5.

Further, the

Id.

Here, as explained above, the Court does not need to make a
legal determination before ascertaining class members.
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The

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Court can determine which individual class members were affected

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by Defendants’ policy of not paying Doubletime Pay by looking at

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Defendants’ PMK testimony, the Amano time records, and payroll

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data.

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Accordingly, the Court finds Plaintiffs have satisfied this

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element for this subclass.

No individual employee testimony would be needed.

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b.

Commonality

Plaintiffs assert that a common question of fact for the
Doubletime Class is whether Defendants maintained a policy that

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failed to provide workers with Doubletime Pay when required.

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Mem. at 8.

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whole class through Defendants’ PMK testimony.

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Plaintiffs contend that this can be answered for the
Id.

Defendants argue that there is conflicting testimony about

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how their Doubletime Pay policies applied to individual

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employees.

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testifying that employees actually received Doubletime Pay.

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Opp. at 8.

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finder cannot simply defer to their time records and payroll

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data in lieu of individual testimony. Absent such an

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explanation, the Court finds Plaintiffs have satisfied this

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element since their class-wide contention that Defendants

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maintained a policy that failed to provide workers with

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Doubletime Pay is “capable of class-wide resolution” by

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examining Defendants’ PMK testimony, the Amano time records, and

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payroll.

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See Opp. at 8.

Defendants cite declarations

Defendants, however, fail to explain why the fact

Dukes, 564 U.S. at 350.
c.

Typicality

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Plaintiffs argue that the named Plaintiffs’ claims are

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typical of the rest of this class because they involve the same
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1

type of injury caused by the Defendants’ standardized policy of

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not adequately providing Doubletime Pay.

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Defendants counter that Plaintiffs’ reliance on their own

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testimony and the testimony of one putative class member as

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proof of company-wide practices is insufficient to establish

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typicality.

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in support of their argument: Pena v. Taylor Farms Pacific,

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Inc., 305 F.R.D. 197, 223 (E.D. Cal. 2015), Zayers v. Kiewit

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Infrastructure West Co., No. 16-cv-06405, 2017 WL 4990460, at *5

Opp. at 5-6.

See Mem. at 11-12.

Defendants cite the following cases

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(C.D. Cal. Oct. 26, 2017), Garcia v. Sun Pacific Farming

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Cooperative, No. CV F 06-0871, 2008 WL 2073979, at *3 (E.D. Cal.

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Feb. 21, 2014), and Rojas v. Marko Zaninovich, Inc., No. 1:09-

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CV-00705, 2012 WL 439398, at *29 (E.D. Cal. Feb. 9, 2012).

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Those cases are unavailing.

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In Pena, the court found the plaintiffs satisfied

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typicality and certified the subclass at issue even though the

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plaintiffs only provided a few declarations describing the

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alleged harms.

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provided declarations and also analyzed time and payroll records

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for purported class-members.

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analyze typicality and so this case is of little help to the

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Court here.

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Rojas emphasized the difficulty in certifying classes where

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there were conflicting declarations and no time and payroll

25

records.

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certification where time records did not state what the

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plaintiffs claimed); Rojas, 2012 WL 439398, at *18 and *29

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(certifying sub-minimum hourly wage plus piece rate subclass

305 F.R.D. at 223.

Here, Plaintiffs have

The court in Zayers did not

See 2017 WL 4990460.

The courts in Garcia and

See Garcia, 2008 WL 2073979, at *3 (denying

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1

where payroll database could show below minimum compensation

2

while denying certification of pre-shift work subclass where

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plaintiffs relied on anecdotal evidence that conflicted with

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testimony submitted by the defendants and no records of pre-

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shift work existed).

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not dispositive since the factfinder can defer to Defendants’

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time and payroll records to determine individual class-members’

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injuries caused by Defendant’s alleged policy of not providing

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Doubletime Pay.

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But here, the conflicting declarations are

Plaintiffs and class-members who suffered from Defendants’

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alleged standardized policy of not providing Doubletime Pay

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would use Defendants’ time and payroll records and make similar

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legal arguments in their attempt to prove Defendants’ liability.

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The Court finds Plaintiffs have satisfied the typicality element

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as to this subclass.

16

275 F.3d at 868.

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18

d.

See Dukes, 131 S.Ct. at 2550; Armstrong,

Predominance

Plaintiffs claim that common questions of fact predominate

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over individual questions for this subclass because the claim

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could be adjudicated through a payroll redo complying with

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California law, in light of Defendants’ PMK testimony, documents

22

produced during discovery, Plaintiffs’ expert analysis and class

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members’ declarations.

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Plaintiffs also argue that common questions of law and fact

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predominate over individual inquiries because they have

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identified the relevant policy (Defendants’ failure to provide

27

Doubletime Pay) and the laws they allegedly violate (California

28

Labor Code § 1197 and Wage Order 1).

See Mem. at 12-13; Reply at 2.

14

See Mem. at 12-13 (citing

1

Bibo v. FedEx, No. C 07-2505, 2009 WL 1068880, at *10 (N.D. Cal.

2

Apr. 21, 2009)).

3

Defendants contend that even if there was a class-wide

4

policy of not providing Doubletime Pay, it was not uniformly

5

applied.

6

argument, Valdez v. Neil Jones Food Co., No. 1:13-cv-00519, 2014

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WL 3940558, at *7 (E.D. Cal. Aug. 12, 2014), is unpersuasive.

8

In Valdez, the Court found individual inquiries predominated for

9

the purported class at issue because it needed to consider

But the only case Defendants cite to support their

10

“where the individual employees spent their time and whether

11

they were performing similar duties.”

12

(citing Lusby v. Gamestop Inc., 297 F.R.D. 400, 413 (N. D. Cal.

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2013)).

14

Again, the Court need only look at Defendants’ time and payroll

15

records to determine which employees were improperly denied

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Doubletime Pay.

2014 WL 3940558, at *7

Those issues do not apply to the Doubletime Class.

17

Defendants also argue that the Doubletime Class asserts

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violations of the California waiting time law, which requires an

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inquiry into whether Defendants were willful.

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Defendants cite In re Taco Bell Wage & Hour Actions, 2011 WL

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4479730, at *5, (E. D. Cal. Sept. 26, 2011) to support their

22

argument.

23

inquiries would exist as to willfulness because there were

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potential individual good faith disputes over whether wages were

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due and whether an employer acted willfully.

26

here, the parties agree that Defendants’ payroll and time

27

records are accurate and so the Court need not conduct

28

individual inquiries over disputes of whether wages were due.

Opp. at 14.

In Taco Bell, the court found that individual

15

Id., at *5.

But

1

See Woolfson Decl., at 12.

2

decided, the Ninth Circuit has reversed denials of class

3

certification motions where waiting time penalties were

4

involved.

5

512 (9th Cir. 2013).

6

waiting time penalties dooms class certification is incorrect.

7

Further, since Taco Bell was

See Levya v. Medline Industries, Inc., 716 F.3d 510,
So Defendants’ suggestion that requesting

In sum, the Court finds that common questions of law and

8

fact—whether Defendants violated California labor laws and the

9

Wage Order by failing to provide Doubletime Pay—predominate over

10

individual inquiries.

11

have satisfied the remaining Rule 23 elements of numerosity,

12

adequacy, and superiority, the Court grants Plaintiffs’ motion

13

for class certification as to the Doubletime Class.

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15

3.

Given that Defendants concede Plaintiffs

30 Minute Auto-Deduction Class

Plaintiffs claim Defendants’ policy of automatically

16

deducting 30 minutes of pay from employees for meal periods

17

without a corresponding time entry showing that an unpaid meal

18

period was recorded violates Wage Order 1 and Cal. Lab. Code

19

§§ 510, 512, and 226.

20

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

21

period of more than five (5) hours without a meal period of not

22

less than 30 minutes [.]”

23

11(A).

24

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

25

providing the employee with a second meal period of not less

26

than 30 minutes [.]”

27

states that meal periods shall be recorded.

28

§ 11010, subd. 7(A)(3).

Mot. at 4-5; Mem. at 3-4, 8-9.

In

8 Cal. Code Regs., § 11010, subd.

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

Cal. Lab. Code § 512.

Wage Order 1 also
8 Cal. Code. Regs.,

Finally, the failure to record meal
16

1

periods creates a “rebuttable presumption . . . that the

2

employee was not relieved of duty and no meal period was

3

provided.”

4

Overtime Cases, 19 Cal. App. 5th 277, 311-12 (2017).

Brinker, 53 Cal. 4th at 1053; see also ABM Indus.

5
6

a.

Ascertainability

Plaintiffs claim that all employees who experienced auto-

7

deductions can be ascertained by review of Defendants’ records.

8

Reply at 2-3.

9

Class is not ascertainable because individual inquiries are

Defendants contend the 30 Minute Auto-Deduction

10

required to determine which employees had 30 minutes

11

automatically deducted for meal periods, which did not have a

12

corresponding time entry, and which did not receive the meal

13

period as required.

14

support.

15

given that the plaintiffs in Roth, unlike Plaintiffs here, did

16

not allege any auto-deductions of meal periods and only alleged

17

that there was a word-of-mouth meal break policy that was

18

unlawful.

Opp. at 4.

Defendants rely on Roth for

2013 WL 5775129, at *4.

This reliance is misplaced

Id.

19

Determining whether individual employees that received

20

auto-deductions actually received meal breaks may be difficult.

21

But Defendants’ failure to keep records of meal breaks being

22

taken results in a presumption that meal breaks were not given.

23

Brinker, 53 Cal. 4th at 1053; see also ABM Indus. Overtime

24

Cases, 19 Cal. App. 5th at 311-12.

25

would not have to engage in possibly difficult individual

26

inquiries to decipher who should be a part of this subclass and

27

therefore Plaintiffs have satisfied this element.

28

b.

Commonality
17

The Court finds that it

1

Plaintiffs argue that a common issue of fact for this class

2

is whether Defendants maintained a policy of automatically

3

deducting 30 minutes of time from shifts lasting at least 6

4

hours without supporting records.

5

assert the issue can be decided by looking at Defendant’s PMK

6

testimony, Plaintiffs’ declarations, and Plaintiffs’ data

7

expert’s analysis of Defendants’ payroll and timekeeping

8

records.

9

Mem. at 9-10.

Plaintiffs

Id., at 10.

In Wilson v. TE Connectivity Networks, Inc., No. 14-cv-

10

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

11

court certified an auto-deduction meal period class similar to

12

the one here.

13

never paid additional compensation to employees in lieu of

14

missed meal breaks because employees always received their meal

15

breaks.

16

“assertion is insufficient to defeat certification” and found

17

that Plaintiffs’ claims of the auto-deduction policy sufficed to

18

satisfy the commonality and predominance requirements.

19

The defendants in that case argued that they

Id., at *11.

The Court found the defendants’

Id.

Other courts have also found auto-deduction classes satisfy

20

the commonality requirement.

See, e.g. Villa v. United Site

21

Servs. Of California, Inc., No. 5:12-cv-00318, 2012 WL 5503550

22

(N.D. Cal. Nov. 13, 2012) (ruling that “[t]hough there may be

23

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

24

policy affected different employees, it does raise shared legal

25

issues, which is all that is required to satisfy the commonality

26

requirement of Rule 23(a)”) (citing Hanlon v. Chrysler Corp.,

27

150 F.3d 1011, 1019 (9th Cir. 1998)); Blackwell v. SkyWest

28

Airlines, Inc., 245 F.R.D. 453, 461 (S.D. Cal. 2007) (ruling
18

1

that the defendant having a procedure to correct the auto-deduct

2

policy did not negate the fact that common legal and factual

3

questions existed).

4

Defendants contend that Plaintiffs cannot satisfy the

5

commonality element because their written policies are to

6

provide meal periods and any inconsistencies in how meal periods

7

are taken depend on each individual employee’s circumstances.

8

Opp. at 8-9.

9

support of this argument.

Defendants rely on Roth, Garcia, and Dukes in
Defendant’s reliance is again

10

misplaced because none of these cases involved auto-deduction

11

policies.

12

Dukes, 564 U.S. 338.

13

testimony over whether meal periods were taken, individual

14

inquiries are unnecessary to resolve the claims of the subclass

15

members because of (1) the presumption that meal periods were

16

not taken where no meal periods were recorded and (2) the

17

existence of time and payroll data showing consistent automatic

18

deductions of 30-minute meal periods.

19

1053; See Woolfson Decl. at 14-15.

See Roth, 2013 WL 5775129; Garcia, 2008 WL 2073979;
And even though there is conflicting

Brinker, 53 Cal. 4th at

20

Defendant’s PMK testimony and Defendants’ payroll and

21

timekeeping data can resolve the common issue of fact for this

22

class—whether Defendants’ maintained a policy of automatically

23

deducting 30 minutes of time from shifts lasting at least 6

24

hours without supporting records of meal periods being taken.

25

The Court finds Plaintiffs have satisfied this element.

26
27
28

c.

Typicality

Plaintiffs argue that their claims are typical of the rest
of this class because they involve the same type of injury
19

1

caused by the same standardized policy of Defendants

2

automatically deducting 30 minutes of time from shifts lasting

3

at least 6 hours without supporting records of meal periods

4

being taken.

5

Plaintiffs’ reliance on their own testimony and the testimony of

6

one putative class member as proof of company-wide practices is

7

insufficient to establish typicality.

8

again rely on Pena, Zayers, Garcia, and Rojas to support their

9

argument.

See Mem. at 11-12.

Defendants counter that

Opp. at 5-6.

Defendants

As explained above, those cases are of little help to

10

Defendants.

11

unlike the plaintiffs in the other three cases, have analyzed

12

time and payroll records for class-members instead of solely

13

relying on individual testimony.

14

Pena, 305 F.R.D. at 223; Garcia, 2008 WL 2073979, at *3; Rojas,

15

2012 WL 439498, at *18 and *29.

16

Zayers did not address typicality and Plaintiffs,

See Zayers, 2017 WL 4990460;

Plaintiffs and subclass members who suffered from

17

Defendants’ standardized auto-deduction policy incurred the same

18

injury and would make similar legal arguments to prove

19

Defendants’ liability.

20

satisfied this element.

21

275 F.3d at 868.

22
23

d.

The Court finds Plaintiffs have
Dukes, 131 S.Ct. at 2550; Armstrong,

Predominance

Plaintiffs argue that common questions of fact predominate

24

over individual questions for this subclass because the claim

25

can be resolved through examining Defendants’ PMK testimony,

26

documents produced during discovery, Plaintiffs’ expert analysis

27

and class members’ declarations.

28

Plaintiffs further contend that common questions of law and fact
20

See Mem. at 12-13; Reply at 2.

1

predominate over individual inquiries because they have

2

identified the relevant policy (Defendants’ policy of

3

automatically deducting 30 minutes of time from shifts lasting

4

at least 6 hours without supporting records of meal breaks) and

5

the laws it allegedly violates (California Labor Code § 1197 and

6

Wage Order 1).

7

07-2505, 2009 WL 1068880, at *10 (N.D. Cal. Apr. 21, 2009)).

8
9

See Mem. at 12-13 (citing Bibo v. FedEx, No. C

As explained above, in Wilson, 2017 WL 1758048, at *7-11,
the court found that the plaintiffs’ claims of an auto-deduction

10

policy sufficed to satisfy the commonality and predominance

11

requirements.

12

should instead apply Villa, 2012 WL 5503550 and Blackwell, 245

13

F.R.D. at 461, where courts found plaintiffs did not satisfy the

14

predominance element.

15

cases do not apply to the facts at hand.

16

At the hearing, Defendants argued that the court

But the predominance analyses from those

In Villa, the plaintiffs could not satisfy the predominance

17

requirement for the meal and rest classes because the

18

plaintiff’s single declaration was not enough to show that the

19

employer had an unlawful uniform policy.

20

*10-12.

21

enough information to determine the defendant’s liability for

22

the doubletime class.

23

time and payroll records provide enough information to determine

24

whether Defendants implemented an unlawful auto-deduction

25

policy.

26

analysis is misplaced.

27
28

2012 WL 5503550, at

Further, the time records in Villa did not provide

Id., at *12.

In contrast, Defendants’

So Defendants’ reliance on Villa’s predominance

In Blackwell, the court found it could not determine which
employees received meal breaks without individual inquiries,
21

1

since there were no records of meal breaks.

2

68.

3

presumption that a lack of meal period records suggest meal

4

periods were not actually taken.

5

Blackwell meal period analysis is not persuasive.

6

classes in Blackwell, the court found numerous individual

7

questions arose that could not be answered by examining payroll

8

and time records.

9

Court can use payroll and time data to determine whether

245 F.R.D. at 467-

Blackwell, however, did not account for the Brinker

53 Cal. 4th at 1053.

245 F.R.D. at 468-70.

So the

For the other

In contrast, here the

10

Defendants had an unlawful policy of automatically deducting 30

11

minutes of time from shifts lasting at least 6 hours without

12

supporting records of meal breaks.

13

Further, for the reasons stated above, the Court rejects

14

Defendants’ waiting time arguments for this class.

15

Court can use Defendants’ payroll and time records to determine

16

whether Defendants had an unlawful auto-deduction policy, the

17

Court finds that common questions of law and fact predominate

18

over individual inquiries for this class.

19

Because the

Finally, with respect to this subclass, Defendants concede

20

that Plaintiffs have satisfied the remaining elements of

21

numerosity, adequacy, and superiority.

22

Rule 23 elements, Plaintiffs’ motion for class certification as

23

to the 30 Minute Auto-Deduction Class is granted.

24
25

4.

Having satisfied all the

The Meal Period Premium Class

Plaintiffs seek to certify this subclass based on

26

Defendants employing an ad hoc system of providing meal periods

27

where supervisors or leads are responsible for relieving workers

28

for meal breaks, as production permits.
22

Mem. at 4 (citing

1

Deposition of Thomas P. Ramirez (“Ramirez Depo.”), ECF No. 33-4,

2

at 35:7-36:9, 67:6-13; Deposition of Jon Ryder Gullette

3

(“Gullette Depo.”), ECF No. 33-5, at 20:4-21:9).

4

Plaintiffs contend that Defendants’ employees must obtain

5

authorization to take meal breaks and receive permission only

6

after accommodating production needs.

7

Ramirez Depo. at 37:1-38:16, 86:5-22, 112:8-113:25; Gullette PMK

8

Depo. at 20:4-21:19).

9

meal periods in Defendants’ timekeeping records.

Specifically,

Mem. at 4-5 (citing

There are also many untimely and missed
Id. (citing

10

Woolfson Decl., ¶ 18).

11

results in a failure to pay meal period premiums to those who

12

had a short (less than 30-minutes), late (after the fifth hour

13

of work), or missed meal period, in violation of Wage Order 1

14

and Labor Code §§ 512 and 226.

15

Plaintiffs claim Defendants’ policy

Mot. at 5-6; Mem. at 10.

In their opposition, Defendants include testimony that

16

managers rotated meal and rest periods between employees

17

throughout the day to keep production smoothly, while complying

18

with laws requiring employees get timely and appropriate breaks.

19

Opp. at 11 (citing Gullette Depo. 18:9-19:2; Decl. of Angel

20

Madson, ECF No. 44-13, ¶ 10; Decl. of Rafael Zermeno (“Zermeno

21

Decl.”), ECF No. 44-24, ¶ 11; Picos Decl., ¶ 8; Ramirez Depo. at

22

36:13-38:6, 123:8-124:13).

23

that employees were trained and reminded on proper meal period

24

compliance (one 30 minute meal period before the fifth hour of

25

work and a second 30 minute meal period after ten hours of work)

26

and were disciplined for taking short meal periods.

27

(citing Picos Decl., ¶ 10; Decl. of Raymond Moreno, ECF No. 44-

28

15, ¶ 10; Zermeno Decl., ¶ 7; Decl. of Fernando Mejia, ECF No.

Defendants provide further testimony

23

Opp. at 11

1

44-14, ¶ 9; Decl. of Gustavo Garcia, ECF No. 44-10, ¶ 9; Decl.

2

of Jerry Storey, ECF No. 44-21, ¶ 8; Decl. of Ramiro Lopez, ECF

3

No. 44-12, ¶ 11; Decl. of Ozzy Rauda, ECF No. 44-18, ¶ 12).

4

Employers failing to provide meal periods as required by

5

the Wage Order must pay “one additional hour of pay at the

6

employee’s regular rate of compensation for each work day that

7

the meal … is not provided.”

8

11(B); Cal. Lab. Code § 226.7(b).

9

can establish that employees’ accrued unpaid meal period premium

Cal. Code Regs. § 11010, subd.
And a plaintiff’s punch data

10

wages are capable of common proof.

11

238 Cal. App. 4th 1138, 1160 (2015).

Safeway, Inc. v. Sup. Ct.,

12

But an employer’s duty to pay an employee a meal period

13

premium is only triggered by a failure to provide a meal period.

14

In re Taco Bell Wage and Hour Actions, 2012 WL 5932833, at *10.

15

In these cases, “individual inquiry [is] necessary to determine

16

if a meal break was in fact denied.”

17

administration of meal periods or sporadic irregular departures

18

from company policy is insufficient to certify a proposed class,

19

as it would require the court “to make individual determinations

20

as to whether employees… received meal periods.”

21

WL 2073979 at *5; see also Zayers, 2017 WL 4990460, at *4

22

(holding no common proof capable of resolving on a class-wide

23

basis whether Defendants failed to provide employees with an

24

opportunity to take meal breaks since it would require

25

individual inquiry as to every class member and whether they

26

took meal breaks, whether they were denied the opportunity to

27

take them, or whether and why they waived them).

28

a.

Commonality
24

Id.

Inconsistency in the

Garcia, 2008

1

Plaintiffs argue that the common question of fact here is

2

whether Defendants maintained a policy that failed to pay meal

3

period premiums to workers who had a short (less than 30-

4

minutes), late (after the fifth hour of work), or missed meal

5

period.

6

a class-wide basis by Defendants’ PMK testimony and Plaintiffs’

7

expert’s declaration.

Mem. at 10.

Plaintiffs claim this can be determined on

Id.

8

Defendants respond that in cases like this, “individual

9

inquiry [is] necessary to determine if a meal break was” denied,

10

since an employer’s duty to pay an employee a meal period

11

premium “is only triggered when the employer ‘fails to provide’

12

a meal period.”

13

at *10).

14

meal period premium class, since employers “are only liable for

15

premium pay when they fail to provide a meal break[.]”

16

Bell, 2012 WL 5932833, at *10.

17

is true here, since the Court will need to undertake

18

individualized inquiries to determine whether and why each

19

subclass member was denied a meal break for each meal-period.

20

Opp. at 10.

21

adjudication of this subclass.

22

Shack, Inc., No. CV 10-7060, 2013 WL 210223, at *7 (C.D. Cal.

23

Jan. 17, 2013) (finding there is no way of determining on a

24

class-wide basis whether time records show violations, or

25

whether individual class members voluntarily elected “to start

26

their meal break late, cut it short or take a meal break at

27

all.”)).

28

Opp. at 10 (citing Taco Bell, 2012 WL 5932833,

The Taco Bell court refused to certify the plaintiffs’

Taco

Defendants argue that the same

Defendants contend that this forecloses class-wide
Id. (citing Ordonez v. Radio

Plaintiffs counter that the evidence shows a uniform
25

1

practice of not paying meal period premiums for facially

2

noncompliant meal periods.

3

even though some employees sometimes execute meal period

4

waivers, those shifts can be excluded and that if any meal

5

periods are missing, it is because the employees’ supervisors

6

did not allow them.

7

Reply at 3.

Plaintiffs add that

See id.

Plaintiffs also attempt to distinguish Ordonez by claiming

8

that commonality was not found there because the plaintiff

9

admitted there was no ‘common document’ that could establish who

10

was damaged and only pointed to a potentially unlawful written

11

policy.

12

Ordonez, as in the instant case, the plaintiff presented time

13

records showing missing meal breaks where the defendants’

14

employees also had to obtain supervisor permission to take a

15

meal break.

16

that this evidence was not conclusive, since the missing meal

17

periods could have been violations or maybe the individual class

18

members voluntarily opted to start their meal breaks late, cut

19

them short, or skip the breaks entirely.

20

here and the Court cannot simply assume that where meal periods

21

are missing, it is because employee supervisors did not allow

22

them.

23

Reply at 5 (citing Ordonez, 2013 WL 210223).

Ordonez, 2013 WL 210223, at *7.

Id.

But in

The court found

The same is true

Plaintiff’s attempt to distinguish Ordonez fails.
Because determining whether and why employees may not have

24

taken meal periods is an individualized inquiry and because

25

there is conflicting testimony about Defendants’ policies and

26

the application thereof, the Court finds Plaintiffs have not

27

shown that this subclass satisfies the commonality element.

28

Taco Bell, 2012 WL 5932833, at *10; Ordonez, 2013 WL 210223, at
26

1

*7.

2

subclass.

Accordingly, the Court denies certification of this

3

5.

4

The Uniform Deduction Class

Plaintiffs contend that Defendants’ policy of deducting

5

sums for maintenance of uniforms results in inaccurate wage

6

statements and unlawful withholding of wages or deduction from

7

wages for employees who have separated from Defendants, in

8

violation of California Labor Code §§ 203, 2802(a), and/or 221

9

and 224.

Mot. at 6; Mem. at 10-11.

10

Labor Code § 2802(a) states that “[a]n employer shall

11

indemnify his or her employee for all necessary expenditures or

12

losses incurred by the employee in direct consequence of the

13

discharge of his or her duties [.]”

14

“[w]hen uniforms are required by the employer to be worn by the

15

employee as a condition of employment, such uniforms shall be

16

provided and maintained by the employer.”

17

§ 1101, subd. 9(a).

18

Wage Order 1 states that

8 Cal. Code Regs.,

In response to Plaintiffs’ contention, Defendants provide

19

undisputed evidence that uniforms were not required at either

20

the Tracy Branch or Ontario Branch and that any employee who

21

wore a uniform did so voluntarily.

22

Dep. 124:9-18; Ramirez Depo. 41:15-21, Moreno Decl., ¶ 15;

23

Bautista Decl., ¶ 13; Picos Decl., ¶ 14; Lopez Decl., ¶ 15).

24

Plaintiffs have neither alleged that uniforms were required or

25

submitted any evidence to support such an allegation.

26

Mem.

27

or Wage Order 1 if uniforms were necessary or required.

28

Opp. at 12 (citing Gullette

See Mot;

Defendants’ policy would only violate Labor Code § 2802(a)

Because Plaintiffs have neither alleged nor produced
27

1

evidence of any legal violations as to this subclass,

2

Plaintiffs’ motion to certify the Uniform Deduction Class is

3

denied.

4

D.

Plaintiffs’ Request To Strike And Evidentiary
Objections

5
At the hearing, the Court denied Plaintiffs’ request to
6
strike and evidentiary objections to Defendants’ declarations
7
attached to their opposition.

ECF No. 46.

The Court affirms its

8
denial.
9
10
III.

ORDER

11
For all the reasons stated at the February 27, 2018 hearing
12
on this motion and set forth above, the Court GRANTS Plaintiffs’
13
motion to certify the two subclasses identified by Plaintiffs as
14
the “Doubletime Class” and the “30 Minute Auto-Deduction Class”.
15
The Court DENIES Plaintiffs’ motion to certify any of the other
16
proposed subclasses.
17
IT IS FURTHER ORDERED that Plaintiffs Edgar Morales,
18
Salvador Magana, and Matthew Bagu are appointed Class
19
Representatives, and Mallison & Martinez is appointed as Class
20
Counsel.
21
IT IS SO ORDERED.
22
Dated: April 5, 2018
23
24
25
26
27
28
28