Guinn v. Sugar Transport of the Northwest, Inc.

Filing 82

MEMORANDUM AND ORDER DENYING 70 Plaintiff's MOTION FOR PROCEEDING AS COLLECTIVE ACTION AND FOR CLASS CERTIFICATION signed by Senior Judge William B. Shubb on 12/20/2017. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RYAN GUINN, an individual, on
behalf of himself, and on
behalf of all other persons
similarly situated,
Plaintiffs,

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v.

CIV. NO. 2:16-325 WBS EFB

MEMORANDUM AND ORDER RE: MOTION
FOR PROCEEDING AS COLLECTIVE
ACTION AND FOR CLASS
CERTIFICATION

SUGAR TRANSPORT OF THE
NORTHWEST, INC., a California
Corporation, et al.,
Defendants.

Plaintiff Ryan Guinn brings this collective and class
action suit against defendants Sugar Transport of the Northwest
(“Sugar Transport”), Bronco Wine Company (“Bronco”), and Classic
Wines of California (“Classic”) for alleged violations of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216; the
California Labor Code, Cal. Lab. Code §§ 201, 203, 204, and 512;
and California’s Unfair Competition Law (“UCL”), Cal. Bus. &
Prof. Code § 17200, et seq.

Presently before the court is

plaintiff’s Motion for Proceeding as a Collective Action under

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the FLSA and for Class Certification pursuant to Federal Rule of

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Civil Procedure 23 (“Rule 23”) with regard to his state law

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claims.

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I.

(Docket No. 70.)

Factual and Procedural Background

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From December 2002 through June 2006, and again from

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April 2008 through February 6, 2015, plaintiff was employed by

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Sugar Transport as a truck driver.

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2).)1

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Classic2 to provide “hiring, training, supervising and

(Pl. Decl. ¶3 (Docket No. 70-

On May 1, 2008, Sugar Transport contracted with Bronco and

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disciplining of all drivers.”

(Decl. of John Riella (“Riella

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Decl.”) ¶ 2, Ex. A.)

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were assigned to the Bronco contract at a given time.

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Over the course of the proposed class period, Sugar Transport

Approximately 40 Sugar Transport drivers
(Id. ¶ 3.)

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Sugar Transport objects to most of the documentary
evidence that plaintiff offers in support of his motion, arguing
that it does not satisfy the requirements of the Federal Rule of
Evidence. See generally Sugar Transport’s Objections to Decls.
(Docket Nos. 78-1, 78-2, 78-3.) However, “evidence presented in
support of class certification need not be admissible at trial.”
Pena v. Taylor Farms Pac., Inc., 305 F.R.D. 197, 205 (E.D. Cal.
2015), appeal dismissed (June 5, 2015), order clarified sub nom.
Carmen Pena v. Taylor Farms Pac., Inc., Civ. No. 2:13-1282 KJM
AC, 2015 WL 12550898 (E.D. Cal. Mar. 30, 2015), and aff'd, 690 F.
App’x 526 (9th Cir. 2017) (internal citations omitted).
Accordingly, the court need not address any of Sugar Transport’s
objections at this stage.
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Classic is a wholly-owned subsidiary that was a
wholesaler of wines for Bronco. (Decl. of Ian A. Kass (“Kass
Decl.”) ¶ 6.) Throughout this memorandum, “Bronco” refers to
both Bronco and Classic. Plaintiff argues that each driver was
jointly employed by Sugar Transport, Bronco, and Classic.
However, the court need not address the merits of plaintiff’s
joint employer argument because even if the court accepted this
contention, it would still deny the Motion on other grounds
discussed herein.
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employed approximately 55 drivers.

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Defs.’ Resp. to Pl.’s Req. for Admis., Set No. Two (Docket No.

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70-5).)

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Transport uniformly classified all of its drivers as exempt from

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overtime pay.

(Kass Decl. ¶ 9, Ex. IAK-2,

At all times during the proposed class period, Sugar

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(Decl. of Mark Stephens (“Stephens Decl.”) ¶ 8.)

The principal job functions of all of the drivers were

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the same.

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by reviewing their cargo.

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trucks had been loaded and the cargo confirmed, the drivers would

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spend most of their day driving to the stores and retailers along

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their routes, delivering cases of wine.

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scheduled the deliveries for all of the drivers.

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¶ 3; Kass. Decl., Ex. IAK-2 at 5:8-23.)

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all of the drivers who serviced Bronco that, as part of their

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schedule, they “were required to take a 30 minute break between

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the 3rd and 5th hour of the workday.”

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Once the drivers had completed the day’s deliveries, they would

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each return to their assigned terminal, clean their truck, and

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complete and submit their day-end paperwork.

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They began their workdays at their assigned terminal
(Stephens Decl. ¶ 4.)

(Id.)

After the

Defendants
(Stephens Decl.

Sugar Transport informed

(Stephens Decl. ¶ 9.)

(Id.)

On October 23, 2015, plaintiff filed a putative class

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and collective action specifically alleging that Sugar Transport

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had (1) failed to pay overtime wages in violation of the FLSA;

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(2) failed to timely pay wages in violation of California Labor

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Code § 204; (3) failed to timely pay wages due at termination in

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violation of California Labor Code §§ 201 and 203; (4) failed to

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provide meal and rest periods in violation of California Labor

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Code § 512; (5) and engaged in unlawful and unfair business

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practices in violation of Business and Professions Code §§ 17200.
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(Docket No. 1-1.)

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Amended Complaint (“FAC”) that added Bronco and Classic as

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defendants in the lawsuit.

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II.

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On January 24, 2017, plaintiff filed an

(FAC ¶ 12 (Docket No. 51).)

FLSA Collective Action
A.

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Legal Standard
The FLSA provides recourse to an employee against an

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employer who fails to pay requisite overtime wages.

See 29

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U.S.C. § 207.

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FLSA on their own behalf and on behalf of “other employees

Employees may bring suits for violations of the

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similarly situated.”

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may maintain an FLSA collective action, each employee who wishes

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to join in the action must affirmatively “opt in” to the action

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by executing a written consent to become a party to the lawsuit.

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Id.; Kinney Shoe Corp. v. Vorhes, 564 F. 2d 859, 861 (9th Cir.

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1977).

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B.

29 U.S.C. § 216(b).

Though one employee

Similarly Situated
The FLSA does not define the term “similarly situated,”

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nor has the Supreme Court or the Ninth Circuit offered further

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clarification.

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WBS EFB, 2016 WL 6666812 (E.D. Cal. Nov. 10, 2016).

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Supreme Court has indicated that a proper collective action

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encourages judicial efficiency by addressing in a single

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proceeding claims of multiple plaintiffs who share “common issues

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of law and fact arising from the same alleged [prohibited]

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activity.”

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170 (1989).

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approach for determining whether a class is ‘similarly

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situated.’”

See Knight v. City of Tracy, Civ. No. 2:16-1290
However, the

Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165,
“A majority of courts have adopted a two-step

Murillo v. Pac. Gas & Elec. Co., Civ. No. 2:08-1974
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WBS GGH, 2010 WL 2889728, at *2 (E.D. Cal. July 21, 2010).

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this approach, the district court must first determine whether

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the proposed class should be notified of the action.

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more than one year since this court approved the notice and thus

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step one is satisfied.

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the court makes a factual determination about whether the

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plaintiffs are similarly situated by weighing the following

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factors: “(1) the disparate factual and employment settings of

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the individual plaintiffs, (2) the various defenses available to

(Docket No. 16.)

Under

It has been

During the second step,

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the defendant which appear to be individual to each plaintiff,

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and (3) fairness and procedural considerations.”

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Petro-Chemical Transport, LLC, 582 F. Supp. 2d 1290, 1294 (E.D.

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Cal. 2008).

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Bishop v.

Under the FLSA, employers are required to pay employees

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overtime for hours worked in excess of 40 hours per week.

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U.S.C. § 207(a)(1).

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the FLSA overtime requirement does not relate to all of the

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drivers because the federal Motor Carrier Act (“MCA”) exemption,

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which exempts employees who are engaged in the interstate

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transportation of goods from the FLSA overtime requirement,

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applies to some of the drivers.

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Defendants contend that class members’ claims turn on case-by-

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case, fact specific analyses of whether each driver is exempt

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from the overtime requirement.

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However, defendants argue that in this case

See 29 U.S.C. § 213(b)(1).

Plaintiff counters that, in fact, none of the drivers

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qualified for this exemption.

As evidence, plaintiff states

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that, according to declarations, none of the drivers ever crossed

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California’s state lines when driving for Sugar Transport, and
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thus did not engage in interstate transportation.

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P. & A. at 13.)

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the Ninth Circuit, “an employee’s minor involvement in interstate

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commerce does not necessarily subject that employee to the [MCA

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exemption] for an unlimited period of time . . . and if the

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employee’s minor involvement can be characterized as de minimis,

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that employee may not be subject to the [exemption] at all.”

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Reich v. American Driver Service, Inc., 33 F.3d 1145, 1155 (9th

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Cir. 1994).

(Pl.’s Mem. of

Plaintiffs further contend that, according to

From this, plaintiff argues that more than a mere

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“reasonable expectation” of engaging in interstate commerce is

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required for the MCA exemption to apply.

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However, at this stage of the analysis plaintiff has

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the burden of proving that the class satisfies the “similarly

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situated” requirement.

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670 F. Supp. 2d 1114, 1123-24 (E.D. Cal. 2009), citing Hipp v.

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Liberty Nat. Life. Ins. Co., 252 F.3d 1208, 1217 (11th Cir.

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2001).

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fact is subject to the Motor Carrier Act exemption, but instead

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need only determine whether a decision to apply the exemption

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would require an individual analysis or whether, based on

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evidence presented by plaintiff, the drivers are sufficiently

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“similarly situated.”

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that the class is “similarly situated” is based entirely upon the

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fact that the drivers never crossed California state lines.

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However, drivers do not need to actually cross state lines in

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order to qualify for this exemption; it is sufficient that

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drivers “hauled goods in the practical continuity of movement in

Vasquez v. Coast Valley Roofing, Inc.,

Thus, the court need not determine whether each driver in

Here, plaintiff’s attempt to establish

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interstate commerce.”

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Accordingly, the fact that the drivers may not have left

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California does not mean that none of them engaged in interstate

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commerce and thus that they are “similarly situated” for the

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purposes of this exemption.

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Bishop, 582 F. Supp. 2d at 1298.

Instead, the court would need to engage in an

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individualized analysis to determine which, if any, of the

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drivers could in fact be categorized as exempt from the FLSA.

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was not uncommon for drivers to “deliver product from out of

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state and out of the country.”

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(“McKenna Decl.”) ¶ 3 (Docket No. 79-7).)

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sometimes delivered wine to San Francisco International Airport

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or Los Angeles International Airport, clearly indicating that

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this product was bound for interstate transport.

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14.)

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state is insufficient to demonstrate that they are similarly

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situated--the court finds it likely that some of the drivers

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It

(Decl. of Kimberley McKenna

qualified for the exemption while others did not.

Additionally, drivers

(Mitts Decl. ¶

Thus, the mere fact that the drivers did not leave the

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Plaintiff’s primary objection to defendants’ argument

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is not that defendants misstate the law, but rather that the

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evidence defendants have is insufficient to establish that the

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“The Ninth Circuit has ruled that intrastate deliveries
may be considered in the stream of interstate commerce if the
property in question originated from out-of-state, and the
intrastate portion of the route is merely part of the final phase
of the unmistakably interstate transport.” Bishop, 582 F. Supp.
2d at 1302 (citing Klitzke v. Steiner Corp., 110 F.3d 1465, 146970 (9th Cir. 1997).) In such instances, “the transportation is
considered part of a ‘practical continuity of movement’ across
state lines.” Id.
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MCA exemption applied.

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or not defendants are ultimately able to prove that the exemption

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applies is irrelevant at this point because plaintiff maintains

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the burden of proving that the drivers are “similarly situated.”

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Notably, all of the cases plaintiff cites to are district court

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cases and are unrelated to the certification stage of the

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process.

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involving summary judgment, in which the court held that there

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was a de minimis limitation to the MCA exemption.

See Pl.’s Reply at 4-5.

However, whether

Rather, plaintiff relies only on unpublished cases

See, e.g.,

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Robinson v. Open Top Sightseeing San Francisco, LLC, 2017 WL

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2265464, at *7-8 (N.D. Cal. May 24, 2017); Veliz v. Cintas Corp.,

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2009 WL 1107702, at *4-8 (N.D. Cal. 2009).)

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The fact that a defendant could not get beyond the

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summary judgment stage due to a failure to indicate more than de

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minimis interstate transport does not establish that the drivers

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are similarly situated.

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himself cites states that “[d]istrict courts following Reich [a

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Ninth Circuit opinion] have understood the MCA exemption to apply

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on a driver-by-driver basis.”

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Thus, although it is correct that at trial defendants would

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ultimately need to show that each driver has a more than

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happenstance possibility of driving product over state lines or

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that he “participated in more than a de minimis level of

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interstate activity,”

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does nothing to change the fact that an individual analysis of

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each driver would still be necessary in order to determine

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exactly which drivers engaged in sufficient interstate commerce

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activities such that there payment was not governed by the FLSA.

In fact, one of the cases that plaintiff

Robinson, WL 2265464, at *7.

Veliz, 2009 WL 1107702, at *9, that rule

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Accordingly, plaintiff has failed to satisfy the “similarly

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situated” requirement and his Motion to Proceed as a FLSA

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Collective Action must therefore be denied with regard to all

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defendants.4

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III. Class Certification for State Law Claims

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A.

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Legal Standard
To certify a class pursuant to Rule 23, plaintiff must

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satisfy the four requirements set forth in Rule 23(a):

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“numerosity,” “commonality,” “typicality,” and “adequacy of

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representation.”

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establish an appropriate ground for bringing a class action under

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Rule 23(b).

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

Plaintiff must also

Fed. R. Civ. P. 23(b).

“Rule 23 does not set forth a mere pleading standard. A

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party seeking class certification must affirmatively demonstrate

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his compliance with the Rule.”

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564 U.S. 338, 350 (2011).

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trial court is satisfied, after a rigorous analysis, that the

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prerequisites of Rule 23(a) have been satisfied.”

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(citation omitted).

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entail some overlap with the merits of the plaintiff’s underlying

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claim.”

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considered to the extent--but only to the extent--that they are

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relevant to determining whether the Rule 23 prerequisites for

Wal-Mart Stores, Inc. v. Dukes,

“[C]ertification is proper only if the

Id. at 350-51

“Frequently that rigorous analysis will

Id. at 351 (citation omitted).

“Merits questions may be

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Plaintiff’s failure to satisfy the “similarly situated”
requirement is dispositive and therefore the court need not
address defendants’ argument to the effect that at the time the
notice went out Sugar Transport was the only defendant, so that
the class members were not given the choice whether or not to
opt-in the suit as against the other defendants.
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class certification are satisfied.”

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Plans & Tr. Funds, 133 S. Ct. 1184, 1195 (2013).

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B.

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Amgen Inc. v. Conn. Ret.

Class Definitions
Plaintiff seeks to certify two different classes

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related to his state law claims.

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certification of a class for his overtime claims (“the overtime

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class”) consisting of:

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First, plaintiff requests

All persons employed by SUGAR TRANSPORT OF THE NORTHWEST,
and jointly employed by BRONCO WINE COMPANY and CLASSIC
WINES OF CALIFORNIA, as a driver, or any other job title the
principal job functions of which are the same as those
performed by its drivers, in California, and who worked more
than forty hours during at least one workweek at any time on
and after October 23, 2011.

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(Pl.’s Notice of Mot. at 2 (Docket No. 70).)
Plaintiff also seeks certification of a class for his
meal and rest break claims (“the meal and rest period class”)
consisting of:
All persons employed by SUGAR TRANSPORT OF THE NORTHWEST,
and jointly employed by BRONCO WINE COMPANY and CLASSIC
WINES OF CALIFORNIA as a driver, or any other job title the
principal job functions of which are the same as those
performed by its drivers, in California, at any time on and
after October 23, 2011.

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(Id.)5
C.
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Rule 23(a)

In his Memorandum of Points and Authorities, plaintiff
defines both classes in a more general manner, stating that the
classes consist of “all persons employed by SUGAR TRANSPORT OF
THE NORTHWEST,” and does not confine the class to those drivers
who worked for Bronco or Classic. (Pl.’s Mem. of P. & A. at 4.)
Accordingly, there is some debate as to the true definition of
plaintiff’s classes. However, the court finds that even if
plaintiff were provided the opportunity to modify its class
definitions, doing so would not cure all of the defects of this
Motion.
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Rule 23(a)(1) requires the proposed class to be so

Numerosity

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numerous that joinder of all of the class members would be

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impracticable.

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where the plaintiff class contains forty or more members.”

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Cooper Companies Inc. Sec. Litig., 254 F.R.D. 628, 634 (C.D. Cal.

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2009); see also, e.g., Collins v. Cargill Meat Solutions Corp.,

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274 F.R.D. 294, 300 (E.D. Cal. 2011) (Wagner, J.).

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proposed class includes 55 individuals.

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

“[N]umerosity is presumed
In re

Plaintiff’s

(See Pl.’s Mem. of P.&A.

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at 6; see also Defs.’ Resp. to Pl.’s Req. for Admis., Set No. 2.)

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Accordingly, plaintiff has satisfied the “numerosity”

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requirement.

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2.

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The “commonality” requirement of Rule 23(a)(2) requires

Commonality

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that plaintiff show that “there are questions of law or fact

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common to the class.”

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of fact and law need not be common to satisfy [Rule 23(a)(2)].

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The existence of shared legal issues with divergent factual

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predicates is sufficient, as is a common core of salient facts

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coupled with disparate legal remedies within the class.”

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v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

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matters to class certification . . . [is] the capacity of a

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classwide proceeding to generate common answers apt to drive the

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resolution of the litigation.”

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members’ claims “must depend upon a common contention . . . [that

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is of] such a nature that it is capable of classwide resolution--

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which means that determination of its truth or falsity will

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resolve an issue that is central to the validity of each one of

Fed. R. Civ. P. 23(a)(2).

“All questions

Dukes, 564 U.S. at 350.

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Hanlon
“What

Class

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the claims in one stroke.”

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Id.

Here, plaintiff contends that common questions of law

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and fact exist with regard to whether defendants failed to

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provide meal breaks and rest periods for the drivers, failed to

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provide them with overtime pay, and whether these practices are

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unlawful under California law and constitute violations of

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California’s Labor Code and the UCL.

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pled, share a common question of law--whether any of the

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practices [defendants are] alleged to have engaged in constitute

“Plaintiff’s claims, as

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violations of California law--and at least some of the facts to

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be analyzed with respect to this question are the same.”

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Washington v. Joes Crab Shack, 271 F.R.D 629, 636 (N.D. Cal.

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2012).

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once for all class members, and thus plaintiff has met the

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“commonality” requirement.

Accordingly, the court can resolve this central question

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3.

Typicality

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The “typicality” requirement of Rule 23(a)(3) requires

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that plaintiff have claims “reasonably coextensive” with those of

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proposed class members.

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“typicality” is “whether other members have the same or similar

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injury, whether the action is based on conduct which is not

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unique to the named plaintiffs, and whether other class members

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have been injured by the same course of conduct.”

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Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation

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omitted).

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cases, but that specificity does not necessarily defeat

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typicality.”

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2003).

Hanlon, 150 F.3d at 1020.

The test for

Hanon v.

“Some degree of individuality is to be expected in all

Stanton v. Boeing Co., 327 F. 3d 938, 957 (9th Cir.

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Here, plaintiff alleges that defendants did not provide

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him and the proposed class with the requisite overtime pay or

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sufficient breaks during their shifts.

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at 12-13.)

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suffer the same damages from the alleged violations, they,

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according to plaintiff, suffered the same injuries (i.e., breach

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of labor laws and business code provisions) from the same action

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(i.e., defendants’ failure to provide proper working conditions

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and payment) and seek to recover pursuant to the same legal

(See Pl.’s Mem. of P.&A.

Even if plaintiff and members of the class did not

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theories.

From this, the court concludes that plaintiff’s claims

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are “sufficiently parallel [to other members’ claim] to insure a

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vigorous and full presentation of all claims for relief.”

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California Rural Legal Assistance, Inc. v. Legal Servs. Corp.,

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917 F.2d 1171, 1175 (9th Cir. 1990).

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plaintiff has demonstrated that he “possess[es] the same

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interest[s] and suffer[s] the same injury as the class members,”

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Gen. Tel. Co. of Sw v. Falcon, 457 U.S. 147, 156 (1982), he has

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satisfied the “typicality” requirement.

Accordingly, because

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4.

Adequacy

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Rule 23(a)(4) requires that the class representative

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“will fairly and adequately protect the interests of the class.”

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Fed. R. Civ. P. 23.

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the named plaintiffs and their counsel have any conflicts of

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interest with other class members and (2) will the named

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plaintiffs and their counsel prosecute the action vigorously on

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behalf of the class?”

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representation is generally satisfied if the representative’s

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individual interests are the same or similar to the other class

This inquiry involves two questions: “(1) do

Hanlon, 150 F.3d at 1020.

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Adequacy of

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members.

2

Falcon, 457 U.S. at 157.
Here, plaintiff’s claims are similar to those of other

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class members and he is unaware of any conflicts with them.

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(Pl.’s Decl. ¶¶ 15-16.)

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significant resources to this case already, including, but not

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limited to, engaging in numerous communications with counsel,

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assisting counsel with conducting the investigation, and

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attending depositions.

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pursuing the case through to its resolution for the sake of all

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Moreover, plaintiff has committed

(Id. ¶ 17.)

prospective class members.

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Plaintiff is committed to

(Id.)

Plaintiff’s counsel are experienced attorneys who have

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knowledge of class actions and of wage and hour and employment-

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related claims.

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to doubt that plaintiff’s counsel are qualified to conduct this

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litigation and will vigorously prosecute the action on behalf of

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class members.

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no fixed standards by which ‘vigor’ can be assayed,

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considerations include competency of counsel.”).

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the court finds that plaintiff and plaintiff’s counsel are

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adequate representatives of the class, and therefore that

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plaintiff has satisfied all of the requirements set forth in Rule

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23(a).

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D.

(Kass Decl. ¶¶ 2-5.)

The court finds no reason

See Hanlon, 150 F.3d at 1021 (“Although there are

Accordingly,

Rule 23(b)
Plaintiff seeks to certify a class pursuant to Rule

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23(b)(3), which requires that “questions of law or fact common to

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class members predominate over questions affecting only

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individual members, and . . . a class action is superior to other

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available methods for fairly and efficiently adjudicating the
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controversy.”

Fed. R. Civ. P. 23(b)(3).

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1.

Predominance

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The “predominance” inquiry “tests whether proposed

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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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commonality, the focus of the Rule 23(b)(3) predominance inquiry

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is on the balance between individual and common issues.”

9

v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 476 (E.D. Cal. 2010)

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

“Because Rule 23(a)(3) already considers

Murillo

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(citing Hanlon, 150 F.3d at 1022).

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district court to formulate some prediction as to how specific

12

issues will play out in order to determine whether common or

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individual issues predominate in a given case.”

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Mart Stores, Inc., 603 F. 3d 571, 593 (9th Cir. 2010), rev’d on

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other grounds, 564 U.S. 338 (2011).

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requirement is “far more demanding” than the commonality

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requirement of Rule 23(a).

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a.

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This rule “requires a

Dukes v. Wal-

The “predominance”

Amchem Prods., 521 U.S. at 623.

The Meal and Rest Period Class

In a class certification motion, “the crucial issue

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with regard to the meal break claim is the reason that a

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particular employee may have failed to take a meal break.”

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Washington v. Joe's Crab Shack, 271 F.R.D. 629, 641 (N.D. Cal.

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2010).

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precluded the drivers from taking a break.

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contrary, Sugar Transport had a policy that required its drivers

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to take their lawful breaks and shared this policy with drivers

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through written notices, verbal discussions, and posted wage

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orders.

Here, plaintiff has not identified a specific policy that

(Mitts Decl. ¶ 15.)

In fact, to the

“In the absence of any common
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1

policy, an individualized inquiry will be required to determine

2

whether any single employee failed to take a meal break,” and the

3

reasoning behind such failure.

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641.6

5

missed, and why, would involve an individual analysis into the

6

daily behavior of each particular driver.

Joe’s Crab Shack, 271 F.R.D. at

Accordingly, the determination of whether a break was

7

In this case, each driver was assigned to deliver

8

different product, to different customers, in different areas of

9

California.

(Patterson Decl.

¶ 3, Ex. B.)

Drivers’ schedules

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could be changed for a variety of reasons, including traffic,

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problems with the truck, or an issue with a particular customer.

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Moreover, the drivers themselves have expressed various reasons

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for choosing to skip meal breaks, including wanting to finish

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their deliveries more quickly so they could go home.

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Ex. C; ¶ 5, Ex. D.)

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meal break was not taken to establish a violation.

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must show that [defendants] impeded, discouraged, or prohibited

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[drivers] from taking a proper break.”

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F.R.D. at 641.

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delivery schedules impeded the ability of drivers to take meal

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and rest breaks, the evidence indicates that in fact the drivers

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themselves had discretion to decide when and if to take such a

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break.

(Id. ¶ 4,

“[P]laintiff must do more than show that a
Instead, he

Joe’s Crab Shack, 271

Although plaintiff argues that Sugar Transport’s

In order for plaintiff to establish otherwise, the court

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6

25
26
27
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Notably, “courts have not hesitated to grant summary
judgment where plaintiffs have skipped breaks of their own accord
due to pressure they feel to complete their job in a given amount
of time, absent evidence that their employer took action to
prevent or impede employees from taking their meal or rest
breaks.” Cleveland Grocerworkeres.com LLC, 200 F. Supp. 3d 924,
946 (N.D. Ca. 2016).
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would need to analyze each particular driver and determine

2

whether or not, and why, he missed breaks.

3

regard to plaintiff’s meal and rest claims, plaintiff has not

4

satisfied the predominance component and therefore cannot comply

5

with Rule 23(b).

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b.

Accordingly, with

The Wage Class

7

Plaintiff’s wage claim, which he brings under both the

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FLSA--as discussed above in reference to the collective action--

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and the Business and Professions Code §§ 17200, et seq., centers

10

around whether the drivers were exempt from overtime pay.

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Section 17200 prohibits any unfair competition, which is defined

12

as “any unlawful, unfair or fraudulent business act or practice.”

13

Cal-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th

14

163, 180 (1990).

15

and treats them as unlawful practices” that then become

16

independently actionable.

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provisions of the FLSA to bring a state claim under § 17200.

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Thus, plaintiff is essentially attempting to certify two separate

19

actions based on the FLSA: (1) a collective action based on

20

allegations that Sugar Transport failed to pay the drivers

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overtime, and (2) a Rule 23 class action based upon the same

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alleged violations.

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Section 17200 “borrows violations of other laws

Id.

Here, plaintiff borrows from the

As discussed above, determining whether the drivers

24

were exempt from the FLSA overtime requirement would entail an

25

individualized analysis and determination as to which of the

26

drivers, if any, engaged in interstate transportation.

27

Therefore, for the same reason that plaintiff did not satisfy the

28

“similarly situated” requirement necessary to maintain a FLSA
17

1

collective action, he has also failed to demonstrate that common

2

issues would predominate over individual questions with regard to

3

his state law overtime claim as well.7

4

IT IS THEREFORE ORDERED that plaintiff’s Motion for

5

Proceeding as a Collective Action under the FLSA and for Class

6

Certification pursuant to Federal Rule of Civil Procedure 23 be,

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and the same hereby is, DENIED.

8

Dated:

December 20, 2017

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Rule 23(b)(3) also requires that a class action be the
superior means of adjudication. However, plaintiff’s failure to
satisfy the predominance requirement is dispositive and therefore
the court need not address the superiority requirement.
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