Barbosa et al v. Delta Packing Company of Lodi, Inc. et al

Filing 53

ORDER signed by District Judge Troy L. Nunley on 8/14/2023 GRANTING in PART and DENYING in PART 41 Motion for Class Certification. The parties are ORDERED to file a Joint Status Report within 30 days of the electronic filing date of this Order, detailing proposed dates for a supplemental scheduling order.(Reader, L)

Case 2:20-cv-01096-TLN-KJN Document 53 Filed 08/16/23 Page 1 of 12
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IRMA BARBOSA and CECILIA MATA,
on behalf of themselves and those similarly
situated,

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Plaintiffs,

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No. 2:20-cv-01096-TLN-KJN

ORDER

v.
DELTA PACKING COMPANY OF
LODI, INC. AKA “DELTA FRESH”;
SALINAS FARM LABOR
CONTRACTOR, INC.; ERNIE
COSTAMAGNA, an individual,
ANNAMARIE COSTAMAGNA, and
individual, and DOES 1–20

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Defendants.

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This matter is before the Court on Plaintiffs Irma Barbosa (“Barbosa”) and Cecelia Mata’s

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(“Mata”) (collectively, “Plaintiffs”) Motion for Class Certification. (ECF No. 41.) Defendants

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Delta Packaging of Lodi, Inc. (“Delta”), Salinas Farm Labor Contractor, Inc. (“Salinas”), Ernie

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Costamagna, Annmarie Costamagna, and Does 1–20 (collectively, “Defendants”) filed an

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opposition. (ECF Nos. 46, 50.) Plaintiffs filed a reply. (ECF No. 51.) For the reasons set forth

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below, the Court GRANTS in part and DENIES in part Plaintiffs’ motion.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiffs allege they were previously employed by Salinas and worked at Delta’s

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packaging plant in Lodi, California as agricultural workers. (ECF No. 41-1 at 2.) Salinas is a

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labor contractor and provides general laborers to Delta during their cherry packing season. (ECF

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No. 50 at 6.) Barbosa claims she worked for Defendants for nine seasons, 2009 through 2018, in

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various positions but most recently as a sorter. (ECF No. 41-3 at 2.) Mata claims she worked for

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Defendants for one season, in 2016, as a sorter. (ECF No. 41-4 at 2.)

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Plaintiffs allege several of Defendants’ wage and hour policies violated California law by
not compensating employees for all hours worked. (ECF No. 41-1 at 1–2.) Specifically,

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Plaintiffs allege Defendants automatically deducted thirty-minutes from their timecard’s meal

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breaks, even though Defendants routinely denied employees timely meal breaks or did not

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provide employees with full thirty-minute meal breaks. (Id. at 3.) Plaintiffs also allege

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Defendants required employees to work during mandatory rest breaks. (Id. at 1.) Finally,

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Plaintiffs allege Defendants required employees to don and doff protective gear and complete

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other work-related tasks while off-the-clock. (Id. at 2.)

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On May 29, 2020, Plaintiffs filed a class action suit against Defendants alleging eight

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causes of action: (1) violation of the Fair Labor Standards Act; (2) failure to pay minimum wages;

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(3) failure to pay overtime wages; (4) failure to provide timely and complete meal periods or pay

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additional wages in lieu thereof; (5) failure to provide rest periods or pay additional wages in lieu

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thereof; (6) failure to pay wages of terminated or resigned employees; (7) knowing and

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intentional failure to comply with itemized employee wage statement provisions; and (8)

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violation of California’s Unfair Competition Law. (ECF No. 1.)

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Plaintiffs filed the instant motion to certify class on September 19, 2022. (ECF No. 41.)

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Plaintiffs seek to certify three classes pursuant to Federal Rule of Civil Procedure (“Rule”) 23.

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(ECF No. 41-1 at 1–2.) Plaintiffs’ putative “Class 1,” labeled the “Auto-Deduction Class”

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includes “[a]ll non-exempt individuals who are or have been employed by Defendants at the

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Delta Packing Company of Lodi, Inc. (aka ‘Delta Fresh’) packing plant in Lodi, California at any

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time since May 29, 2016, whose time records show auto-deducted 30-minute meal periods.” (Id.
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at 1.) Plaintiffs’ putative “Class 2,” labeled the “Rest Break Class” includes “[a]ll non-exempt

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individuals who are or have been employed by Defendants at the Delta Packing Company of

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Lodi, Inc. (aka ‘Delta Fresh’) packing plant in Lodi, California at any time since May 29, 2016,

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who were subject to policies requiring work during rest periods.” (Id. at 1–2.) Plaintiffs’ putative

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“Class 3,” labeled the “Unpaid Minimum Wage Class” includes “[a]ll non-exempt individuals

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who are or have been employed by Defendants at the Delta Packing Company of Lodi, Inc. (aka

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‘Delta Fresh’) packing plat in Lodi, California at any time since May 29, 2016, who were

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required to don and doff and complete other work tasks off-the-clock.” (Id. at 2.)

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II.

STANDARD OF LAW

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Class certification is governed by Rule 23. “Parties seeking class certification bear the

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burden of demonstrating that they have met each of the four requirements of Rule 23(a) and at

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least one of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970,

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979–80 (9th Cir. 2011) (citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th

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Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001)).

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Under Rule 23(a), the party seeking certification must establish: (1) the class is so

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numerous that joinder of all 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 representative parties are typical of the claims

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or defenses of the class; (4) the representative parties will fairly and adequately protect the

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interests of the class. Fed. R. Civ. P. 23(a). “These requirements effectively ‘limit the class

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claims to those fairly encompassed by the named plaintiff’s claims.’” Gen. Tel. Co. of Sw. v.

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Falcon, 457 U.S. 147, 156 (1982) (quoting Gen. Tel. Co. of the Nw. v. Equal Employ. Opp.

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Comm’n, 446 U.S. 318, 330 (1980)).

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Plaintiffs rely on Rule 23(b)(3) of the Rule 23(b) requirements. (ECF No. 100 at 10.)

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Under Rule 23(b)(3), “[a] class action may be maintained if: . . . (3) the court finds that the

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questions of law or fact common to class members predominate over any questions affecting only

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individual members, and that a class action is superior to other available methods for fairly and

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effectively adjudicating the controversy.” Fed. R. Civ. P. 23(b).

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III.

ANALYSIS
A.

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Rule 23(a)
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Numerosity

The first Rule 23(a) prerequisite is numerosity. Fed. R. Civ. P. 23(a)(1). To meet the

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numerosity requirement, the class must be “so numerous that joinder of all members is

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impracticable.” Id. Numerosity does not impose a precise numerical threshold. Gen. Tel. Co. of

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the Nw., 446 U.S. at 330. However, “[c]ourts have routinely found the numerosity requirement

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satisfied when the class comprises 40 or more members.” E.E.O.C. v. Kovacevich “5” Farms,

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No. 06-165, 2007 WL 1174444, at *21 (E.D. Cal. Apr. 19, 2007).

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In the instant case, Plaintiffs allege there are approximately 2,700 putative class members

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in the three proposed classes. (ECF No. 41-1 at 7.) Defendants contend “the Court cannot make

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a finding that any of the three proposed classes are sufficiently numerous on the record before it.”

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(ECF No. 46 at 10.)

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A plaintiff must present evidence to satisfy the numerosity requirement. See Wal-Mart

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Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“A party seeking class certification must

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affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove

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that there are in fact sufficiently numerous parties ....”). A “failure to present evidence to show

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numerosity precludes class certification.” Diacakis v. Comcast Corp., No. C 11-3002 SBA, 2013

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WL 1878921 (N.D. Cal. May 3, 2013).

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First, Plaintiffs contend there is sufficient evidence to certify approximately 2,700

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members of the Auto-Deduction Class. Specifically, Plaintiffs’ expert, Aaron Woolfson, declared

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of the 2,754 employees involved in the case “almost every employee experienced one or more

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shifts that were subject to auto-deletion” for a meal break, but the time and duration of the meal

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break was not recorded. (ECF No. 41-15 at 9.) Defendants contend this evidence is insufficient

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to prove numerosity and argue “Plaintiffs would need to present evidence regarding the number

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of putative class members who were provided meal periods of less than thirty minutes.” (ECF

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No. 46 at 10.) The Court disagrees. As discussed below, the lack of recorded meal breaks in

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Defendants’ records creates a rebuttable presumption that employees did not receive a meal4

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break. Therefore, the Court finds the Auto-Deduction Class is sufficiently numerous because the

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record shows at least 2,754 employees experienced at least one shift with an unlawful meal break.

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Next, Plaintiffs contend the numerosity requirement is satisfied for the Rest Break Class

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and Unpaid Minimum Wage Class based upon the fact Defendants employed over 2,700 people

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during the class period. (ECF No. 41-1 at 7.) However, this fact alone is insufficient to show

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numerosity. Plaintiffs offer no evidence regarding how many of these employees were required

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to work during rest periods or don and doff and complete other work-related tasks off-the-clock.

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While some declarants in support of Plaintiffs’ motion report having to put on protective gear

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prior to clocking-in or seeing employees work during meal and rest breaks (ECF Nos. 41-3–41-

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4;41-8–41-15), this evidence is alone insufficient to show how many of the approximately 2,700

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employees fall into the Unpaid Minimum Wage Class or Rest Break Class. See, e.g., Siles v.

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ILGWU Nat. Retirement Fund, 783 F.2d 923, 930 (9th Cir.1986) (affirming denial of certification

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of class consisting of members of plan who were denied benefits where plaintiff presented no

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evidence as to how many of the 31,000 plan members were denied benefits in circumstances like

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the plaintiff).

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Accordingly, the Court finds Plaintiffs satisfy the numerosity requirement for the Auto-

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Deduction Class but not the Rest Break or Unpaid Minimum Wage Class. Because Plaintiffs did

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not satisfy the numerosity requirement for the Rest Break and Unpaid Minimum Wage Class, the

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Court does not certify these classes.

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ii.

Commonality

The second Rule 23(a) prerequisite is commonality. Fed. R. Civ. P. 23(a)(2). There must

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be “questions of law or fact that are common to the class.” Id. Commonality exists when class

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members’ claims depend upon a common question that is “capable of classwide resolution—

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which means that determination of its truth or falsity will resolve an issue that is central to the

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validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. Further, the “rigorous

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analysis” under Rule 23(a) “sometimes [requires] the court to probe behind the pleadings before

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coming to rest on the certification question.” Id. at 350–51. “[T]he merits of the class members’

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substantive claims are often highly relevant when determining whether to certify a class,” and “a
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district court must consider the merits” if they overlap with Rule 23(a)’s requirements. Ellis, 657

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F.3d at 981. As such, a court must resolve any factual disputes “to determine whether there was a

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common pattern and practice that could affect the class as a whole.” Id. at 983 (emphasis

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original); see also Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013).
Plaintiffs argue common questions of law and fact exist as to whether Defendants’ meal-

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break practices give rise to liability for the Auto-Deduction Class. (ECF No. 41-1 at 7–10.)

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Under California law, employers are required to accurately record when each employee begins

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and ends each work period, as well as meal periods. Wage Order 1-2001, § 7(A)(3). Plaintiffs

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allege “none of the time records produced by Defendants show recorded meal periods for any

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class member” which raises “a common question of whether Defendants’ policy gives rise to

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liability for meal period violations.” (ECF No. 41-1 at 7.) In support, Plaintiffs rely on Donohue

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v. AMN Servs., 11 Cal. 5th 58 (2021), in which the California Supreme Court held, “[i]f an

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employer’s records show no meal period for a given shift over five hours, a rebuttable

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presumption arises that the employee was not relieved of duty and no meal was provided.” Id. at

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74. The Donohue Court observed that the rebuttable presumption derives from an employer’s

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duty to maintain accurate records of meal periods. Id. at 76; Wage Order No. 4, § 7(A)(3)

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(“Every employer shall keep accurate information with respect to each employee including . . .

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time records showing when the employee begins and ends each work period . . .. Meal periods . . .

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shall also be recorded.”).

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Plaintiffs assert the Donohue presumption applies because Defendants had a uniform

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policy of failing to keep accurate records of meal periods and automatically deducting thirty

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minutes from class members’ timecards. (ECF No. 41-1 at 7–10.) Specifically, Plaintiffs’ expert,

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Aaron Woolfson, states “out of the 2,754 employees’ time clock data that [he] analyzed,

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approximately 82% of all shifts indicated an auto-deduction” where “the shift was greater than

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five (5) hours and there was otherwise not an entry indicating the time, and duration, of a meal.”

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(ECF No. 41-15 at 9.) Thus, Plaintiffs argue they can prove liability on a class wide basis

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through time record analysis pursuant to Donohue. (ECF No. 51 at 3.)

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In opposition, Defendants assert the Donohue presumption is inapplicable because

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Defendants shut down the entire packaging line during meal breaks and thus were not required to

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record meal periods under Wage Order 13. (ECF No. 46 at 12; ECF No. 50 at 16); see Wage

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Order 1-2001, § 7(A)(3) (“Meal periods during which operations cease and authorized rest

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periods need not be recorded.”). In support, Defendants offer declarations from four supervisors

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who assert operations ceased for forty to forty-five minutes during every meal period. (See ECF

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No. 46-1.) Defendants argue this evidence rebuts Plaintiffs’ presumption, which means “the

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Court is [ultimately] left with individualized inquiries into the alleged reasons for class members’

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failure to take their timely meal periods.” (ECF No. 50 at 16.)

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In reply, Plaintiffs assert this exception to Wage Order 13 is inapplicable because

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Defendants failed to consistently cease operations for the entire production line before the fifth

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hour of work and for a full thirty minutes. (ECF No. 51 at 6.) Plaintiffs offer declarations from

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nine employees who testified that they consistently worked more than five hours before being

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given a lunch break, which would typically only last twenty to twenty-five minutes. (See ECF

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Nos. 41-3–41-4; 41-8–41-15.)

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Moreover, Defendants own expert asserts at least 22% of employees experience a shift

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with a meal break violation, that is, either an unrecorded meal break or a meal break less than

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thirty minutes in length. (ECF No. 46-1 at 31.) Even taking Defendants’ lower estimate as true,

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it is ultimately sufficient to invoke the Donohue presumption. See Garcia v. Cent. Coast

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Restaurants, Inc., No. 18-CV-02370-RS, 2022 WL 657972 at *6 (N.D. Cal. Mar. 4, 2022)

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(“[T]hat records show 17% of shifts show a possible meal period violation is sufficient to invoke

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the presumption from Donohue”).

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Accordingly, the Court concludes there are common class-wide questions regarding

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Defendants’ liability to the Auto-Deduction Class. Plaintiffs’ declarations and time record

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analysis by both Plaintiffs and Defendants’ experts creates a rebuttable presumption that

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Defendants are liable for non-compliant meal periods under California law. Additionally, the

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viability of the defense that Defendants were excused from recording meal breaks under Wage

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Order 1-2001, § 7(A)(3) is subject to class-wide resolution because the evidence is common to all
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class members as to whether, in fact, Defendants did cease production during the mandated thirty-

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minute meal break.

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Thus, the Court finds Plaintiffs meet the commonality requirements for the AutoDeduction Class.

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iii. Typicality

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The third Rule 23(a) prerequisite is typicality. Fed. R. Civ. P. 23(a)(3). The

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representative plaintiff’s claims must be “typical of the claims . . . of the class.” Id. The purpose

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of the typicality requirement is to ensure that the representative plaintiff and the class members’

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interests are aligned. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir.

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2010). “Under [Rule 23(a)’s] permissive standards, representative claims are ‘typical’ if they are

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reasonably co-extensive with those of absent class members; they need not be substantially

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identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). “The test of

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typicality is whether other members have the same or similar injury, whether the action is based

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on conduct which is not unique to the named plaintiffs, and whether other class members have

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been injured by the same course of conduct.” Ellis, 657 F.3d at 984 (internal citation omitted).
Plaintiffs contend typicality is satisfied because “Plaintiffs suffered the same meal period

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violations as the proposed class members and therefore their interest in remedying these

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violations aligns with the Class.” (ECF No. 41-1 at 10.) Defendants generally argue Plaintiffs’

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claims are not typical because “they have failed to demonstrate that claims are the same among

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all three packing sheds or job positions at issue.” (ECF No. 46 at 16.)
However, Defendants offer no evidence that contradicts Plaintiffs’ assertion or supports

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their own assertion that Plaintiffs’ claims are unrepresentative of what employees experienced in

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other packing sheds or job positions. Absent evidence of inconsistencies between class members,

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there is no indication Plaintiffs’ claims are unique in any way. Kurihara v. Best Buy Co., No. C

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06-01884 MHP, 2007 WL 2501698 at *7 (N.D. Cal. Aug. 30, 2007) (“For the purposes of the

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typicality requirement, it is sufficient that plaintiff ... has asserted that all Best Buy employees are

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subject to the challenged practice and procedure.”).

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Accordingly, the Court finds that Plaintiffs have satisfied Rule 23(a)’s typicality

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requirement for the Auto-Deduction Class.

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iv. Adequate Representatives

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The final Rule 23(a) prerequisite is adequacy of representation. Fed. R. Civ. P. 23(a)(4).

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“[T]he representative parties [must] fairly and adequately protect the interests of the class.” Id.

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In determining whether that requirement is met, the Court asks two questions: (1) do the

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representative plaintiff and his counsel have any conflicts of interest with other class members;

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and (2) will the representative plaintiff and his counsel prosecute the action vigorously on behalf

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of the class? Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (citing Hanlon, 150 F.3d at

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1020).

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Defendants argue Barbosa has a conflict of interest with other class members because she

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was a floor person, and as such was in a supervisory role where she could have contributed to the

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alleged violations in Plaintiffs’ claims. (ECF No. 46 at 16; ECF No. 50 at 23.) Defendants offer

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no evidence as to what supervisory responsibilities Barbosa had as a floor person other than the

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conclusory declaration from Ms. Cazarez that a “floor person” is “considered a supervisor.”

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(ECF No. 46-1 at 2.) Moreover, Defendants offer no evidence as to whether Barbosa had control

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over scheduling meal breaks or ceasing production to allow employees to take meal breaks.

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Rather, Ms. Cazarez declared, “[f]loor persons do not control when the packing lines start and

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stop.” (ECF No. 46-1 at 3.) Thus, the Court finds Barbosa’s role as a floor person does not

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present a conflict of interest.
Additionally, Salinas challenges Plaintiffs’ ability to prosecute this case based upon vague

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reference to their prosecution of a pending state age discrimination case against Defendants.

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(ECF No. 50 at 24.) In support, Defendants argue “Plaintiffs and counsel may be less willing to

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vigorously pursue this action when they know they have another means of punishing

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Defendants.” (Id.) However, the Court finds Defendants’ vague, unfounded claims are

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insufficient to defeat class certification.
Accordingly, the Court finds Plaintiffs meet Rule 23(a)’s adequacy requirement.

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B.

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Rule 23(b)
i.

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Predominance

Under Rule 23(b)(3), common questions of law and fact must predominate over individual

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questions. Fed. R. Civ. P. 23(b)(3). The predominance inquiry assesses whether the proposed

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class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Prod., Inc. v.

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Windsor, 521 U.S. 591, 623 (1997). “This analysis presumes that the existence of common issues

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of fact or law has been established pursuant to Rule 23(a)(2),” but it goes a step further and

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focuses on the relationship between common and individual issues. Hanlon, 150 F.3d at 1022.

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“When common questions present a significant aspect of the case and they can be resolved for all

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members of the class in a single adjudication, there is clear justification for handling the dispute

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on a representative rather than on an individual basis.” Id. (citation omitted).
Plaintiffs argue “the common question of whether Defendants’ uniform failure to record

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meal periods for the entire class was legal predominates over question as to whether any

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individual class members suffered meal break violations.” (ECF No. 41-1 at 11.) Salinas

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disagrees and argues determinations into whether the production line was shut down and

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employees received a thirty-minute meal break during the class period will require “an

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individualized look at each employee’s time records and a detailed inquiry into each purported

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class members’ meal period practices.” (ECF No. 50 at 18.)
The Court agrees with Plaintiffs. Defendants’ liability will be determined based upon

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whether Defendants adopted a uniform policy which violates California wage and hour laws, not

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whether individual employees received a thirty-minute meal break. Whether an employee

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received a thirty-minute meal break during a given shift goes to damages, not liability, and

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individual damage calculations cannot defeat class certification. Yokoyama v. Midland Nat. Life

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Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010); Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir.

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1975) (“The amount of damages is invariably an individual question and does not defeat class

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action treatment.”).

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In the instant case, common questions required by Rule 23(a)(2) predominate over any

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purported individual issues. These common questions include whether Defendants had a policy

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of providing class members with thirty-minute meal breaks as required under California law,

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whether Defendants can demonstrate that it ceased production to provide employees with these

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required meal breaks, and if not, whether Defendants can demonstrate they properly recorded

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thirty-minute meal breaks for class members throughout the entire class period.1

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Accordingly, the Court finds Plaintiffs have met the predominance requirement for the
Auto-Deduction Class.

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ii.

Superiority

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Finally, a Rule 23(b)(3) class action must be “superior to other available methods for

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fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). If there are no

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viable alternatives to a class action, the class action method is necessarily superior. Loc. Joint

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Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir.

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2001).
Plaintiffs assert superiority is satisfied because “class action is superior to the only other

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available method, which would be a multitude of thousands of individual lawsuits.” (ECF No.

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41-1 at 12.) Defendants contend the Court should consider the viability of Plaintiffs’ trial plan in

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determining whether class certification is appropriate. The Court disagrees. Nothing in Rule 23

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requires Plaintiffs to submit a formal trial plan with a motion for class certification. See

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Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 n. 4 (9th Cir. 2005) (“Nothing in the Advisory

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Committee Notes suggests grafting a requirement for a trial plan onto the rule.”). Moreover,

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Plaintiffs have submitted a viable method for managing this case as a class action. As noted

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above, common proof can be used to determine Defendants’ liability.

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The Court acknowledges that in 2019 Defendants began keeping a meal tracking log in
addition to ceasing operations during meal breaks. (ECF No. 50 at 18.) Salinas argues “because
the meal logs were implemented in 2019, there is a lack of predominance in the purported class
which reaches back to May 29, 2016.” Id. However, as Defendants make clear, Defendants
began keeping a meal log in addition to ceasing operations during meal breaks. Id. Thus, the
implementation of the meal log does not constitute a change in company procedures over the
course of the class period which would defeat predominance.
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Thus, the Court finds that certifying the class is superior to, and more manageable than,

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any other procedure available for the treatment of factual and legal issues raised by Plaintiffs’

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claims.

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for class certification

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(ECF No. 41) as to the Auto-Deduction Class but DENIES Plaintiffs’ motion as to the Rest Break

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Class and Unpaid Minimum Wage Class. The parties are ORDERED to file a Joint Status Report

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within thirty (30) days of the electronic filing date of this Order, detailing proposed dates for a

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supplemental scheduling order.

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IT IS SO ORDERED.
Date: August 14, 2023

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Troy L. Nunley
United States District Judge

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